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V.  t„-^£r  Ct 


BETROTHMENT 

AND 

MARRIAGE 


A  CANONICAL  AND  THEOLOGICAL  TREATISE 

WITH 

NOTICES  ON  HISTORY  AND  CIVIL  LAW 

BY 

CANON  DE  SMET,  S.  T.  L. 

Professor  of  theology  in  the  Grand  Seminairb  de  Bruges. 
REVISED  AND  GREATLY  ENLARGED  BY  THE  AUTHOR 

VOLUME  I 

Translated  from  the  French  Edition  of  1912 
BY  THE  REV.  W.  DOBELL. 


CHARLES  BEYAERT 

PUBLISHER  —  BRUGES  (Belgium) 

B.  HERDER 

17,  South  Broadway,  S'  LOUIS  Mo 
1912 


APPROBATION. 

We  willingly  approve   and   highly  recommend  to   the 

clergy  the  canonical  and  theological  treatise,  Betrothment 

and  Marriage,  by  the   Very   Rev.   Canon   A.   De  Smet, 

S.   Th.  L.,  professor  in  our  <  Grand  Seminaire  »  ;  this 

work,  full  of  solid  doctrine,  bears  testimony  to  considerable 

labour  and  great  discernment. 

Bruges,  20  August,  1912. 

f  G.  J.,  Bishop  of  Bruges. 


PREFACE 

This  English  translation  of  the  treatise,  De  Sponsalibus 
et  Matrmonio,  is  the  second  version  of  that  work  which 
the  author  has  offered  to  the  public.  A  French  translation, 
from  the  second  Latin  edition,  made  its  appearance  a  few 
months  ago,  and  in  his  preface  the  translator  claimed  for 
it  that  it  was  more  than  a  mere  translation,  that  many 
points  had,  in  fact,  been  the  object  of  fresh  study  and  of 
conscientious  revision  on  the  part  of  the  author,  so  that 
the  volume,  then  issued,  gave  to  its  readers  the  equivalent 
of  a  third  edition  of  the  original  work. 

The  like  may  be  said,  and  with  even  greater  reason,  of 
the  present  translation.  Made  directly  from  the  French,  its 
preparation  has  been  followed  throughout  by  the  author 
with  ceaseless  care,  and  he  has  spared  no  pains  to  provide 
a  work  that  should  leave  nothing  to  be  desired  in  the  way 
of  doctrine  or  of  erudition. 

In  taking  upon  himself  this  task,  the  author  was  actuated, 
on  the  one  hand,  by  a  desire  to  meet  the  wishes  of  many 
brother-priests  and  aspirants  to  the  priesthood  among  the 
English-speaking  clergy  ;  and,  on  the  other  hand,  by  the 
hope  of  rendering  a  service  to  the  educated  laity,  by  placing 
in  their  hands  a  work  which  would  enable  them  to  obtain 
first-hand  information  on  this  important  subject. 

Not  to  speak  of  additions  and  corrections,  the  entire 
translation  has  been  supervised  with  the  greatest  care. 
It  follows  the   exact  lines  of  the  original   work   (certain 


passages  of  a  delicate  nature  being  left  in  Latin),  and 
faithfully  reproduces  every  chapter.  In  it  will  be  found  a 
methodical  and  classic  exposition  of  the  doctrine  and 
discipline  of  the  Church  in  the  matter  of  betrothment  and 
marriage,  from  the  point  of  view  of  canon  law  and  of 
dogmatic  and  moral  theology,  together  with  a  commentary, 
as  complete  as  possible,  on  the  modifications  recently 
introduced.  In  addition,  side  by  side  with  questions  that 
properly  belong  to  canon  law  and  theology,  will  be  found 
notices  on  history  and  civil  law,  printed  in  a  smaller  type, 
and  giving  an  idea  of  the  state  and  development  of  the 
ecclesiastical  and  civil  law  in  this  matter.  The  parallel 
exposition  of  the  two  laws  and  of  their  successive  changes 
presents  an  interest  which  there  is  no  need  to  emphasise. 

The  work,  in  its  English  translation,  is  published  in 
two  volumes.  An  index  to  the  complete  work  will  appear 
at  the  end  of  the  second  volume. 

In  conclusion,  we  may  observe  that,  for  the  purpose  of 
preserving  the  unity  of  the  work,  and  in  order  to  avoid 
interfering  with  the  original  arrangement  of  the  chapters, 
the  author  has  thought  it  better  to  deal  with  the  English 
and  American  legislation  on  betrothment  and  marriage  in 
the  form  of  a  supplement,  rather  than  to  insert  that  matter 
in  the  different  chapters.  The  reader  will  have  no  difficulty 
in  finding  the  corresponding  places  in  the  body  of  the  work. 

The  Translator. 


CONTENTS 


PAGE 

Preface v 

Sources XI 

Bibliography xvil 

Book  I 
BETROTHMENT 

CHAPTER  I 

The  Nature  of  Bbtrothment. 

Art.  I.  Meaning,  Division  and  Expediency 3 

Art.  2.  The  Constituent  Element,  or  Consent 6 

Art.  3.  The  Subject,  or  Contracting  Parties 13 

Art.  4.  The  Adjuncts  of  Betrothment 14 

CHAPTER  II 

The  Effects  of  Betrothment        ...  30 

CHAPTER  III 

Impediments  of  Betrothment.        ...  35 

CHAPTER  IV 

Ths  Dissolution  of  Betrothment    ...  38 

CHAPTER  V 

The  Regulation  of  Betrothment. 

Art.  I.  To  whom  the  regulation  of  betrothment  belongs  .        ...  38 

Art.  3.  Duty  of  the  parish  priest 38 

APPENDIX 

The  antenuptial  proclamations. 

I.  Existence  of  the  law,  Persons  affected,  Binding  force  ....  44 

II.  Place,  Number  of  times.  Occasion,  Form  of  publication     ...  46 

III.  Causes  that  remove  the  obligation  of  publishing  the  banns       .        .  53 


VIU 


IV.  The  obligation  of  revealing  impediments 56 

Scholion.  Provisions  of  the  civil  law 61 


Book  II 
MARRIAGE 

PART  I 
Marriage  in  general        ....  67 

Section  I 

The  Matrimonial  Contract  in  itself. 

CHAPTER  I 

Nature  of  the  Matrimonial  Contract. 

Art.  I.  Meaning  and  Origin  of  the  Matrimonial  Contract.        ...  68 

Art.  3.  End  of  Marriage 79 

Art.  3.  Honourable  nature,  or  Morality  of  Marriage        ....  83 

CHAPTER  II 

The  constituent  element  of  the  Matrimonial  Contract, 
or  consent. 

Art.  I.  Matrimonial  consent  in  general go 

Art.  2.  Formalities  of  matrimonial  consent 100 

Paragraph  I.  Formalities  to  be  observed 

1.  For  validity 103 

2.  For  liceity 123 

Paragraph  II.  Limits  of  the  new  law 

I.  Principles 131 

3.  Applications  and  Rules 134 

Art.  3.  Conditional  consent 145 

Scholion.  Different  kinds  of  marriage 154 

Section  II 

The  Matrimonial  Contract  Considered  as  a  Sacrament. 

CHAPTER  I 

Thb  Existence  of  the  Sacrament  of  Marriage. 

The  matrimonial  contract  between  baptized  persons  is  a  Sacrament 
of  the  New  Law.  Dogmatic  and  historical  demonstration        .        .        .  163 


IX 


CHAPTER  II 

Connection  between  the  Contract  and  the  Sacrament. 

In  the  marriage  of  Christians  there  is  no  real  distinction  between 
the  contract  and  the  sacrament  of  matrimony.  Demonstration.  Refu- 
tation ot  contrary  errors 173 

CHAPTER  III 

Nature,  Minister,  Effect,  Subject,  Ceremonies  of  the 
Sacrament  of  Matrimony. 

Art.  I.  Nature  of  the  Sacrament 179 

Art.  2.  Minister  of  the  Sacrament l8x 

Art.  3.  Effects  of  the  Sacrament 184 

Art.  4.  Subject  of  the  Sacrament 185 

Schoiion.  Assistance  of  the  parish  priest  at  the  marriage  of  persons 

unworthy  to  receive  the  sacrament 189 

Art.  5.  Ceremonies  of  the  Sacrament  of  Matrimony 

1.  Rites  actually  in  force 193 

2.  Ancient  rites 196 

Section  III 

The  Marriage  Bond. 

CHAPTER  I 

Nature  of  the  Marriage  Bond. 

Art.  I.  The  conjugal  duty 205 

Paragraph  I.  Lawfulness  of  the  sexual  act  between  married  persons  .  206 
Paragraph  II.  Rights  and  duties  of  conjugal  relations 

I.  Existence  of  these  rights  and  duties      ....  315 
3.  Principles   regulating    the    exercise    of  the  conjugal 

right 217 

Schoiion  I.  Conjugal  relations  in  a  doubtful  marriage     ....  334 

Schoiion  II.  Onanism 235 

Art.  2.  Care  and  education  of  the  children        .*,...  248 
Art.  3.  Cohabitation 

Paragraph  I.  Right  and  obligation  to  cohabitation       ....  255 
Paragraph  II.  Corporal  Separation 

Separation  as  to  community  of  roof  or  cohabitation        .  258 

Separation  a  toro,  or  of  bedchamber 267 

Art.  4.  Mutual  love  and  assistance 269 

CHAPTER  II 

Effects  of  the  Conjugal  Bond. 

I.  Constitution  of  a  distinct  family 371 


2.  Special  relationship 373 

3.  Legitimacy  of  the  children ,        .        .  273 

CHAPTER  m 

Properties  of  the  Conjugal  Bond. 

Art.  I.  Unity  of  the  conjugal  bond    ........  385 

Art.  2.  The  indissolubility  of  the  conjugal  bond 396 

Paragraph  I.  The  law  of  indissolubility  before  the  natural  law    .        .  397 

Paragraph  II.  Indissolubility  before  the  positive  divine  law        .        .  307 
Paragraph  III.  Derogations  from  the  law  of  indissolubility 

1.  Dissolution  of  the  marriage  bond  by  the  ancient  Bill 
ofDivorce 309 

2.  Dissolution  of  the  bond  by  the  power  of  the  Sovereign 
Pontiff 311 

3.  Dissolutionof  the  bond  by  Religious  Profession  .        .  317 

4.  Dissolution  of  the  bond  in  the-CasMS  Apostoli       .        .  333 
Scriptural  foundation  of  the  privilege  ....  334 

Object  of  the  privilege 336 

Conditions 329 

Paragraph  IV.  The  absolute  indissolubility  ot  marriage  ratum  con- 

summatum 340 

Teaching  of  the  Church 341 

Teaching  of  the  Fathers  and  ecclesiastical  writers      .  347 

Documents  that  present  some  difficulty        .        .        .  348 

Scholion  I.  Discipline  of  the  Protestant  and  the  Schismatic  churches     .  359 

Scholion  II.  The  Advantages  of  Marriage 360 

Supplement.  Civil  divorce 

Paragr.  I.  Historical  notice 361 

Paragr.  II.  Provisions  of  the  Belgian  Civil  Code 374 

Paragr.  III.  Criticism  of  the  law  of  civil  divorce  and  corporal  separa- 
tion      378 

Paragr.  IV.  Moral  corollaries 383 

Section  IV 

The  Regulation  of  Marriage 

Paragr.  I.  Regulation  of  marriage  of  baptized  persons.        .        .        .  399 

Paragr.  11.  Regulation  of  marriage  of  unbaptized  persons    .        .        .  419 

Scholion  I.  The  right  of  the  State  to  sterilise  its  subjects.         .        .  423 
Scholion  II.  The  teaching  of  Protestants  about  the  regulation  of 

marriage. 426 

Supplement  I.  Ecclesiastical  regulation  of  marriage  and  its  History  .  428 
Supplement  II,  Civil  Marriage 

The  Preparation 433 

The  Introduction 435 

Belgian  Legislation  on  civil  marriage  ....  ^^g 

Criticism  of  the  Belgian  civil  legislation     .        .        .  432 

Corrections  and  additions 451-452 


SOURCES 

Without  reckoning  the  precepts  of  the  natural  law  relative  to  this  matter, 
and  those  of  the  divine  positive  law,  contained  in  the  Holy  Scriptures,  the 
principal  sources  of  matrimonial  law  are  the  following  :  in  the  first  place, 
for  the  common  law,  the  decrees  of  the  oecumenical  Councils  and  of  the 
Sovereign  Pontiffs,  together  with  the  decisions  of  the  Sacred  Congrega- 
tions ;  in  the  second  place,  for  the  particular  law,  the  decrees  of  particular 
councils  and  the  various  diocesan  decrees.  These  local  ordinances  must 
be  taken  into  consideration,  not  only  in  those  places  in  which  they  are 
binding,  but  also  from  a  general  point  of  view,  since  they  furnish  valuable 
suggestions  for  the  solution  of  questions  of  the  common  law,  as  yet 
undecided. 

We  shall  here  confine  ourselves  to  pointing  out  the  principal  sources  of 
matrimonial  law,  both  general  and  particular. 

1.  Common  law. 

I.  Decrees  of  the  Councils  and  of  the  Sovereign  Pontiffs. 

The  greater  part  of  these  decrees  is  contained  in  the  various  collec- 
tions (*),  such  as  : 

A.  Acts  of  the  Councils  : 

Hardouin,  Acta  Conciliorum  ct  EpistolcB  Decretales  ac  Constitutiones 
SS.  Pontificum,  Parisiis,  1715  (ending  with  the  year  1672),  12  vols,  in 
folio  (2). 


1.  The  great  collections  do  not  all  give  the  Canones  Apostolorunt,  which  are 
a  collection  of  ordinances  derived  from  various  sources  and  consecrated  by  the 
usage  of  the  primitive  Church.  Palmieri  gives  the  text  of  them,  together  with 
a  commentary,  at  the  end  of  his  Tractatus  de  Matrimonio  Christiana. 

2.  Besides  the  edition  of  Hardouin,  there  are  also  that  of  Labbeus  and  Gos- 
SARTius,  Sacrosaiicta  Concilia  ad  regiam  editionem  exacta,  Lutetiae  Parisiorum, 
1671-1673, 18  vols,  in  folio,  and  that  of  Mansi,  Sacrorum  Conciliorum  nova  et 
amplissima  Collectio,  Florentiae  et  Venetiis,  1759-1798,31  vols,  in  folio;  since 
1902,  the  continuation  of  this  work  has  been  taken  in  hand,  and  has  now  reached 
the  43rd  vol.  We  may  also  mention  Hefele,  Histoire  des  Conciles,  ed.  Goschler 
et  Delarc,  Paris,  1869  ;  Dom  Leclercq  is  engaged  in  preparing  a  new  edition, to  be 
issued  by  Letouzey  et  An6,  of  Paris  ;  the  first  vol.  appeared  in  1907,  and  the 
collection  has  at  present  reached  the  first  part  of  the  fifth  volume  (1913). 


XII 


Theiner,  Acta  genuina  Concilii  Tridentini,  Zagrabiae,  1874,  2  vols. 
in  4*°  (1). 

CoLLECTio  Lacensis,  Ada  et  Decreta  sacrorum  Conciliorum  recentio- 
rum,  Friburgi  Br.,  1870-1890  (to  the  Vatican  Council  inclusively),  7  vols, 
in  folio. 

B.  Bullaria  : 

Bullarum,  privilegiorum  ac  diplotnatum  Rom.  Pontificum  amplissima 
collectio,  opera  C.  Cocquelines,  Romas,  1733  ss.  —  From  Leo  the  Great 
to  Benedict  XIV  exclusively  (1470),  28  vols,  in  folio  (*). 

Bullarium  Benedicti  XIV,  Mechlinias,  1826,  13  vols,  in  i2'n°. 

Bullarii  Romani  Contintiatio  (from  Clement  XIII  to  Gregory  XVI 
inclusively),  opera  Barber i  et  Spetia  (vols.  1-5)  necnon  R.  Segreti  (vol.  6 
and  follow^ing),  Romas,  1835-1859,  20  vols,  in  folio. 

Acta  Pit  IX,  Romas,  1848-1865,  3  vols. 

Allocutiones,  Epistolce,  Constitutiones  aliaque  acta  prcecipua  Leonis 
XIII  {1870-iGoo),  Brugis,  8  vols,  in  8^'°. 

Among  the  more  important  Constitutions  and  Acts  of  the  Sovereign 
Pontiffs  in  the  matter  of  marriage,  we  may  mention  :  the  Constitutions  of 
Pius  V,  Sanctissitnum,  of  20  Aug.  1566  ;  Ad  Romanum  Pontificem,  and 
Cum  illius,  of  28  Nov.  1566  ;  Ad  Romanum,  of  i  July  1568  ;  the  Consti- 
tution of  Sixtus  V,  Cum  frequenter,  of  22  June  1587 ;  the  Constitutions  of 
Benedict  XIV,  Deimiseratione,  of  3  Nov.  I74i,and  Ma^nwo«w, of  4  Nov. 
1741 ;  the  Constitution  of  Pius  V,  Auctorem  Fidei,  of  28  Aug.  1794  ;  the 
Syllabus  of  Pius  IX ;  the  Constitution  of  Leo  XIII,  Arcanum,  'of  10  Feb. 
1880. 

C.  The  Corpus  Juris,  comprising  : 

1.  The  Decretum  of  Gratian  ('),  or  Concordia  discordantium  cano- 
num  (♦) ;  marriage  is  there  treated  of  in  Part  2,  Causa  XXVII-XXXVI. 


1.  A  new  and  very  complete  edition  of  the  Acts  of  the  Council  of  Trent  is  in 
preparation,  the  commencement  of  which  has  already  appeared,  under  the 
title  :  Concilium  Tridentinum,  —  Diariorunt,  Actorum,  Epistolarum,  Tractatuum 
Nova  Collectio,  Friburgi  Br.  1901.  Vol.  i  and  2  (constituting  the  i^t  and  the  z"** 
part  of  the  «  Diaria  ■»)  have  appeared,  as  also  vol.  3  and  5  (constituting  the  ist 
and  the  and  part  of  the  «  Acta  »). 

3.  From  the  sixth  vol. onward,  this  collection  is  entitled  :  Bullarium  Romanum. 

3.  This  immense  collection  of  canons  and  decrees  was  preceded  by  several 
compilations  of  less  importance,  notably  by  :  Biirchardi  Wormatcnsis  Decreto- 
rum  Libri  XX,  and  by  the  work  of  Ivo  of  Chartres  :  Panormia  Ivonis  Carnutensis 
(of  which  books  6  and  7  concern  marriage). 

3.  Besides  constituting  a  collection  of  canons  and  papal  decrees,  the  Decretum 
Gratiani  is  at  the  same  time  a  canonical  treatise,  especially  in  the  Dicta, 


XUI 


2.  The  Decretals  of  Gregory  IX  (*),  in  five  books,  of  which  the  fourth 
book  treats  of  marriage. 

3.  The  sixth  book  of  the  Decretals  of  Boniface  VIII,  of  which  book  4 
devotes  three  titles  to  the  question  of  marriage. 

4.  The  Clementine  Constitutions,  the  fourth  book  of  which  is  concerned 
with  this  subject  :  it  comprises  only  one  title  consisting  of  a  single 
chapter  («). 

Note,  a/  The  Compilationes  antiques  may  also  be  of  some  service.  They 
are  five  in  number,  and  are  all  antecedent  to  the  collection  of  the  Decretals 
of  Gregory  IX. 

b/  We  make  use  of  the  critical  edition  of  Em.  Friedberg,  both  for  the 
Compilationes  Antiquce  (^)  and  for  the  Corpus  Juris  (*). 

c/  Quotations  from  the  Decretum  of  Gratian  are  made  thus  :  c.  i, 
C.  XXX,  3  =  chapter  i.  Causa  XXX,  question  3  ;  those  from  the  Compila- 
tiones, thus :  Comp.  I,  c.  3,  IV,  3  ^  Compilation  I,  chapter  3,  book  IV, 
title  3  ;  for  the  Decretals  of  Gregory  IX  :  c.  2,  X,  IV,  3  =  chapter  2, 
book  IV,  title  3,  while  the  letter  X  denotes  that  the  Decretals  of  Gregory 
are  referred  to  (s) ;  in  our  references  to  the  sixth  book  of  the  Decretals,  we 
write  :  c.  2,  in  V\°,  IV,  3  ;  for  the  Clementine  Constitutions :  c.  un.,  in 
Clem.,  IV,  I. 

d/  The  substance  of  the  greater  part  of  the  canons  and  decrees  will  be 
ound  in  Denzinger,  Enchiridion  Symbolorum,  definitionum  et  declara- 
tionum,  lo**^  ed.  (Bannwart),  Friburgi  Br.,  1908 ;  and  also  in  Schneider, 
Pontes  Juris  ecclesiastici  novissimi,  Ratisbonas,  1895. 

Note.  For  passages  taken  from  the  works  of  the  Fathers  and  ecclesiastical 
writers,  we  shall  refer  principally  to  Migne,  PatrologicB  cursus  completus  ; 
the  first  series  of  his  Patrology  (162  vols.)  contains  the  Greek  Fathers  and 
writers ;  the  second  (221  vols.)  the  Latin.  We  shall  quote  the  Apostolic 
Fathers  from  Funk,  Opera  Patrum  Apostolicorum,  2  vol.,  Tubingas,  2»  ed., 
1887  (a  new  edition  there  appeared  in  1901). Recently  also  has  been  published 


1.  This  collection  especially  contains  the  canons  and  decrees  later  than  Gra- 
tian, together  with  the  earlier  decisions  omitted  by  him. 

2.  The  Extravagantes  have  nothing  on  the  subject  of  marriage  ;  liber  quartus 
vacat  (i.  e.,  remains  unwritten). 

3.  Quinque  Compilationes  Antiquce,  necnon  Collectio  Canonum  Lipsiensis,  Lip- 
siae,  1882, 1  vol.  in  41°. 

4.  Corpus  Juris  Canonici,  Lipsise,  1879-1881,  2  vols,  in  4*°. 

5.  The  letter  X  is  an  abbreviation  of  the  word  Extra  (outside),  which  formerly 
served  to  denote  the  Decretals  of  Gregory  IX,  because  they  constitute  a  collec- 
tion outside  of  the  Decretum  of  Gratian. 


JEI^ 


Enchiridion   Patristicum,    by   the  care  of  Rouet    de  Journel,  F'rei- 
burg  Br.,  1911,  to  which  collection  of  texts  we  shall  refer  now  and  then. 

II.  Decrees  of  Roman  Congregations. 

For  our  purpose,  the  most  important  decisions  are  those  of  the  S.  Congr. 
Concilii,  of  the  Congr.  S.  Officii,  of  the  S.  Congr.  de  Propaganda  Fide,  and 
of  the  recently  instituted  S.  Congr.  de  Sacramentis.  They  may  be  found,  in 
part,  in  the  various  Collections,  of  which  the  principal  are  :  the  Thesaurus 
resolutionum  S.  Congr.  Concilii  (commencing  with  1718),  Romte,  1739- 
1903  (162  vols.) ;  Pallotini,  Collectio  omnium  conclusionum  et  resolutio- 
num  qucB  in  causis  propositis  apud  S.  Congr.  Concilii  prodierunt  ab 
a.  1564  ad  a.  1860,  Romas,  1867-1893  (17  vol.) ;  Collectanea  S.  Congr.  de 
Propaganda  Fide,  Romae,  1893  (*) ;  in  part,  in  periodicals,  such  as  the 
Acta  S.  Sedis,  Analecta  Juris  Pontificii,  Canoniste  Contemporain,  II 
Monitore  ecclesiastico,  Analecta  ecclesiastica,  and  other  reviews,  which  we 
shall  quote  as  occasion  requires.  Since  i  Jan.  1909,  the  acts  of  the  Holy  See 
and  the  Roman  documents  appear  in  an  official  Commentary,  entitled 
Acta  ApostoliccB  Sedis. 

Observation.  Beside  the  acts  of  the  Councils  and  of  the  Popes,  and  the 
decrees  of  the  Roman  Congregations,  it  is  useful  also  to  consult,  for  the 
common  law,  the  Rituale  Romanum  and  the  Catechismus  Concilii  Tri- 
dentini. 

Moreover,  one  can  consult  on  the  sources  of  matrimonial  law :  Tardif, 
Histoire  des  sources  du  droit  canon,  Paris,  1889 ;  Laurin,  Introductio  in 
corpus  juris  canonici  cum  appendice  brevem  introductionem  in  corpus  juris 
civilis  continente,  Friburgi  Brisg.,  1889  ;  Vering,  Lehrbuch  des  katholi- 
schen,  orientalischen  und  protestantischen  Kirchenrechts,  Freiburg  in  Br., 
1893,  p.  37-389  ;  Viollet,  Histoire  du  droit  civil  frangais,  2^  ed.,  Paris, 
1893,  Livre  I^'' :  Les  sources  ;  VVernz,  Jus  Decretalium,  I,  Romae,  1898  ; 
SaGMiiLLER,  Lehrbuch  des  katholischen  Kirchenrechts,  Freiburg  in  Br., 
2"'^  ed.,  1909  ;  De  Brabandere-Van  Coillie,  Juris  Canonici  et  juris 
canonico-civilis  compendium,  ed.  7"^*,  Brugis,  1903. 


I.  There  exists  another  edition  of  this  Collectanea,  in  two  volumes  and  arrang- 
ed in  chronological  order  ;  it  appeared  in  Rome  in  1907 ;  our  quotations, 
however,  are  ordinarily  made  from  the  first  edition,  which  is  better  known  and 
handier  ;  in  exceptional  cases  we  have  recourse  to  the  other,  which  we  then 
quote  as  Collectanea*. 


XV 


2.  Particular  law. 

The  general  collections  which  we  have  mentioned  above  contain  many 
provisions  of  particular  law,  especially  canons  of  national  and  provincial 
Councils.  In  addition  to  these,  there  are  special  collections  which  give  the 
acts  of  national  Councils  exclusively.  We  may  mention  the  Concilia  Anti- 
gua Gallia,  ed.  Sirmtmdi,  Lutetias  Parisiorum,  1629,  5  vols,  in  folio,  with 
a  supplement ;  the  Concilia  Germaniae,  ed.  Schannat  d  Hartzheim,  Colo- 
niae  Augustae,  1759-1775,  10  vols,  in  folio ;  the  Synodicum  Belgictim,  that 
is  to  say,  the  Acts  of  all  the  Churches  of  Belgium,  from  the  Council  of  Trent 
to  the  Concordat  of  1801,  ed.  De  Ram,  Mechliniae  et  Lovanii,  1828- 
18580;  Concilii  Plenarii  Baltimorensis  Deer  eta,  oi  1866  and  1884  (2"'* 
and  3'''*  Councils),  Baltimoras,  Murphy  ;  Acta  et  Decreta  Concilii  Plenarii 
AmericcB  Latince  (held  in  Rome  in  1899),  Romas,  1900,  2  vols. 

It  is  right  also  to  mention  the  Instrtictio  Austriaca  (or  Instruction  oi 
Cardinal  Rauschet) pro  judiciis  ecclesiasticis  quoad  causas  matrimoniales, 
in  the  Collect.  Lacens.,  t.  V,  col.  1287  ss. ;  as  well  as  the  Schemata  et 
Postulata  in  Concilio  Vaticano  proposita,  in  the  Collect.  Lacens.,  t.  VII, 
and  in  Martin,  Omnium  Concilii  Vaticani  documentorum  CoUectio, 
Paderbornae,  1873. 

For  the  particular  law  of  the  Diocese  of  Bruges,  we  have  principally 
made  use  of  the  Liber  Mamcalis  Sacerdotum  Dioecesis  Brugensis,  1^  ed., 
Brugis,  1900  ;  of  the  CoUectio  Epistolarum  pastoralium,  Instructionum, 
et  StatutorumEpisc.  Brtig.  (1883-1903),  17  vols. ;  oi  the  Pastorale  Dioece- 
sis Brugensis,  Gandavi,  1838  ;  and  of  the  Statuta  Dioecesis  Brugensis,  ed. 
2^^^,  Brugis,  1890. 

Notes.  As  concerns  the  Civil  Law,  as  a  general  rule,  in  the  course  of 
this  work  we  take  into  consideration  only  the  legislation  of  the  Code  Napo- 
leon (promulgated  the  21  March  1804,  and  known  by  its  present  name  since 
3  Sept.  1807),  which  has  remained  in  force  in  Belgium  and  France,  almost 
in  its  entirety,  to  the  present  day  (*).  We  follow  the  text  of  the  Belgian 
Civil  Code,  while  mentioning,  as  occasion  requires,  the  modifications 
introduced  into  France,  and  the  parallel  legislation  of  other  countries  (^),  as 
well  as  the  provisions  of  the  old  Roman  Law. 


I.  This  collection  contains  only  the  Acts  of  the  dioceses  of  Malines,  Ghent  and 
Antwerp. 

3.  Many  codes  of  other  countries  are  based  on  the  principles  that  inspired  the 
Code  Napoleon,  as  is  shown  by  Planiol,  Traite  eUmentaire  du  Droit  civil,  s^  €d., 
Paris,  1908-1909,  t,  I,  nos  138  ss. 

3.  We  give  as  a  supplement  at  the  end  of  the  treatise, the  principal  matrimonial 
provisions  of  the  English  law  and  of  the  legislation  in  force  in  the  United  States  ; 


XVI 


With  regard  to  the  sources  :  besides  the  Corpus  Juris  Civilis,  Colonias, 
1624  (•),  for  the  Roman  law,  we  refer,  for  the  Belgian  law,  to  the  following 
sources  :  Les  codes  Beiges  et  les  Lois  speciales  lesplus  usuelles,  ed.  Servais 
et  Mechelynck,  Bruxelles,  1910 ;  Le  Moniteur  ;  Les  Annales  Parlementai- 
res  et  Documents  Parlementaires ;  Pasinomie ;  Pasicrisie  Beige  («) ;  Pan- 
dectes  Beiges  (Picaxd  et  d'Hoffschmidt);for  the  legislation  of  other  countries, 
we  have  most  frequently  had  recourse  to  Lehr,  Le  Mariage,  le  Divorce  et 
la  separation  de  corps  dans  les  principaux  pays  civilises,  Paris,  1^9 ;  and 
RoGuiN,  Traite  de  Droit  civil  compare  —  Le  Mariage,  Paris,  1904 ;  in 
addition,  for  the  juridico-civil  part  of  our  treatise,  we  have  examined  a 
number  of  works  and  periodicals  mentioned  in  the  Bibliography. 


also  the  dispositions  of  the  new  German  Code,  promulgated  18  Aug.  1896,  and  in 
force  since  i  Jan.  1900;  we  likewise  give  a  short  resum6  of  the  Canadian  law. 

The  text  of  the  German  Code,  together  with  a  commentary,  may  be  found  in 
Lehmkuhl,  Das  Biirgerliche  Gesetzbuch  des  Deutschen  ReicJtes,  7  Aufl.,  Freiburg  in 
Br. ;  De  Meulenaere,  Code  civil  Alhmand  et  Loi  d' introduction,  Paris,  1897, 
gives  a  French  translation  of  it, 

1.  Cf.  Laurin,  o.  c,  part  2.  The  greater  part  of  the  Corpus  Juris  Civilis  con- 
sists of  the  Digesta  or  Pandects  of  the  emperor  Justinian  (irav  and  bexojaai  =  I 
contain, hence  :  a  compilation  of  all  the  laws).  The  Digesta  or  Pandects  are  desig- 
nated by  the  letters  D  and  P  or  TT,  or  again  by  ff.  (see  Laurin,  o.  c,  p.  248).  In 
the  quotations,  L.  i,  D,  I,  5  signifies  :  Law  i  of  the  Dig.,  Book  I,  Title  5.  The 
best  edition  of  the  Corpus  Jur.  Civ.  is  that  oi  Mommsen-Kriiger-Schoell. 

2.  There  is  also  a  very  useful  decennial  collection  commenced  in  1880  and 
extending  to  1909  inclusively,  under  the  title  of :  Repertoire  decennal  de  la  Juris- 
prudence Beige.  To  the  Pasicrisie  there  is  also  added  a  juridical  review  entitled  : 
Revue  de  Droit  Beige. 


BIBLIOGRAPHY  (') 

I.    Consulted  Works. 

A.  TREATISES  ON  THEOLOGY  AND  CANON  LAW. 

1.  General. 

AicHNER,  Compendium  Juris  ecclesiastici,  lo*  ed.,  Brixinas,  1905. 
Bangen,  Instructio  PracUca  de  Sponsalibus  et  Matrimonio,  3  vol.,  Monas- 

terii,  1858-1867. 
Benedictus  XIV,  Institutiones  ecdesiasticce,  Tornaci,  1855,  4  vol. 

—  De  Synodo  dicecesana,  Mechliniae,  1842,  4  vol. 
'BvcnBKRGR^Jiirchliches  Handlexicon,  Munchen,  1907-1911,  V°  Bhe,Ehe- 

recht.  Ehescheidung. 
Carriers,  Prcelectiones  theologicae.  —  De  Matrimonio ,  Parisiis,  1837, 

2  vol. 
Castelein,  Droit  Naturel,  Namur  1903  —  IV,  Le  Droit  domestique. 
Catholic  Encyclopedia  (The),  l>iew-Yovk,  V°  Marriage,  {vo\.  IX,  p.  691- 

715)  et  V°  Divorce  (vol.  V,  p.  34-69). 
Confere?ices  ecclesiastiques  de  Paris  sur  le  Mariage,  5  vol.,  Paris,  1775. 
De  AiiGELxs,  Prcelectiones  jfuris  Canonici,  Romas,  1880,  Tom.  IIP. 
*  De  Becker,  De  Sponsalibus  et  Matrimonio  —  Prcelectiones  Canonicce, 

2«  ed.,  Lovanii,  1903. 
DeLuca,  Summa  PrcBlectionum  in  libros  Decretalium,  Prati,  1904. 
Devine,  The  law  of  christian  marriage  according  to  the   teaching  and 

discipline  of  the  catholic  Church,  2"''  ed.,  London,  1909. 
Encyclopedia  Britannica  (The),  ii'^  ed.,  Cambridge,  V°  Divorce,  vol.  VIII 

(1910),  p.  334-346  et  V°  Marriage,  t.  XVII  (1911),  p.  753-759- 
Examen  dupouvoir  legislatifde  VEglise  sur  le  mariage,  Paris,  1817. 
Fagnanus,  Jus  Canonicum,  sive  Commentaria  absolutissima  in  Quinque 

Libros  Decretales,  Colonise,  1676-1682,  3  vol.  —  In  L.  IV"". 


I.  We  have  not  included  in  this  Hst  general  theological  treatises,  whether 
dogmatic  or  moral,  nor  compendiums  of  theology,  though  we  have  sometimes 
referred  to  them.  Among  the  Authors  given  here,  we  have  marked  with  an  aste- 
risk those  that  we  consider  the  best  and  most  serviceable  for  our  present  purpose. 
Those  thus  marked  may  suffice  for  beginners. 


XVIII 


Ferraris  Lucius,  Prompta  Bihliotheca,  Migne,  1852-1858,  cum  Supple- 

mento,  Romas,  1899  :  V°  Matrimomum,  Sponsalia. 
*Feye,  De  Impedimentis  et  Dispensationibus  Matrimonii,  Lovanii,  4a  ed., 

1893. 

*  Gasparri,  Tradatiis  Canonicus  de  Matrimonio  Parisiis,  1892,  2  vol.  (*). 
Gerbais,  Traite  dwpouvoir  de  I'Eglise  et  des  Princes  stir  les  empechements 

du  mariage,  Paris,  1698. 
Gerlach,  Lehrbuch  des  katholischen  Kirchenrechts,  Paderborn,  1890. 
Gennari-Boudinhon,  Consultations  de  Morale,  de  Droit  Canonique  et  de 

Littirgie,  u^  Partie  :  Morale,  2  vol.,  Paris,  1907.  Consultations  20,  41, 

42, 46,  118,  119,  125,  127,  128,  135.  -  2^  Partie  :  Droit  Canonique, 

2  vol.,  Paris,  1907.  Consultations  6,  64,  66  et  71. 
Heiner,  Grundriss  des  katholischen  Eherechts,  5  Aufl.,  Miinster,  1905. 
Hergenrother-Hollweck,    Lehrbuch    des  katholischen  Kirchenrechts, 

Freiburg  i.  B.,  1905. 
Instructions  du    Vicariat  de  Rome    sur  la  celebration  des   mariages, 

(18  Mars  1908)  («). 
Instructio  Pastor  alls  Eystettensis,  Tit.  XW,De  Sacr.  Matr.,  p.  315-4.39, 

5*  edit.,  Friburgi  Br. 
Jurisdiction  de  I'Eglise  sur  le  contrat  de  mariage  (de  la),  Paris,  1824. 
KuTscHKER,  Das  Eherecht  der  katholischen  Kirche  nach  seiner  Theorie 

und  Praxis,  5  B.,  Wien,  1856-1857. 
Laurentius,  Institutiones  Juris  Ecclesiastici,  2a  ed.,  Friburgi  Br.,  1908. 
Laurin,  Introductio  in  Jus  Matrimoniale,  Vindobonas,  1895. 
*Leitner,  Lehrbuch  des  Katholischen  Eherechts,  Paderborn,  1902  (•'^). 

*  Martin,  De  matrimonio  et  potestate  ipsum  dirimendi  Ecclesice  soli  pro- 

pria, Lugduni-Parisiis,  1844,  2  vol. 
Meyer,  Institutiones  Juris  Naturalis,  Pars  11*,  Friburgi  Br.,  1900, 
Michel,  Questions  pratiques  sur  le  Mariage  dans  les  Missions,  Maison- 

Carrde,  1903. 
Monita  ad  missionarios  Provincus  Nankinensis,  Zi-ka-wey,  1899. 
Monsabre,  Le  Mariage,  petite  edition,  Paris,  1899. 
MosER,  De  Impedimentis  Matrimonii,  Mechliniae,  1847. 
MuscETTULA,  Disscrtatio  theologico-legalis  de  sponsalibus  et  matrimoniis 

quae  a  filiis-familias  contrahuntur  parentibus  insciis  vel  juste  invitis, 

Bruxellis,  1766. 


1.  The  third  edition  appeared  in  1904.  We  have  quoted  from  it  occasionally, 
more  particularly  where  the  Author  has  changed  his  opinion. 

2.  Translation,which  appeared  in  the  Canoniste  Contemp.,  191X,  p.  595-6^1. 

3.  The  second  edition  has  just  appeared  (1912)  ;  we  indicate  it  Leitner*, 
wherever  we  have  been  able  to  quote  it. 


XIX 


*OjETTi,  Synopsis  rertim  moralium  et  juris  pontificii,  3'*  editio,  Romae, 

vol.  I  (1909),  vol.  II  (1911). 
Palmieri,  TractaUis  de  Matrimonio  chrisiiano,  Roms,  1880. 
Pauwels,  Magnmn  matrimonii  Sacramentum  reductum  in  casus,  Lovanii, 

1759-1760,  torn.  I  et  II. 
Perrone,  De  Matrimonio  christiano,  3  vol.,  Leodii,  1861. 
PoTHiER,  CEuvres,  Tome  V«  :  Du  Traite  dti  Mariage,  ed.  Dupin,  Paris, 

1825. 
PouRRAT,  La  Thcologie  Sacramentaire,  Paris,  1907  (2^  edition  en  1909). 
■^  Reiffenstuel,  Jhs  Canonicum  universum.  —  In  I.  /F,  cum  appendice 

de  dispensatione  super  impedimentis  matrimonii...  de  revalidatione 

Matrimonii,  Venetiis,  1726. 
■■'  Rosset,  De  Sacramento  Matrimonii,  tractatus  dogmaticus,  moralis,  ca- 

nonicus,  liturgicus  et  judiciarius,  6  vol.,  Parisiis,  1895-1896. 
'•=  SaGMULLER,  Lehrbuch  des  Katholischen  Kirchenrechts,  IV  Buch.,Fribur- 

gi  Br.,  1909. 
Salmanticenses,  Cursus  Theologice  Moralis. — Tract.  IX,  De  Matrimonio^ 

Lugduni,  1879. 

*  Sanchez,  Disputationum  de  S.  Matrimonii  Sacramento  libri  treSj  Ant- 

verpias,  1620,  2  vol. 
Santi,  Prcelectiones  Juris  Canonici  juxta  ordinem  Decretatium,  Ratisbo- 

nffi,  1886,  L.  IV^ 
Scheicher,  Praktisches  Handbuch  des  katholischen  Eherechts,  Freiburg  i. 

B.,  1891. 
Schmalzgrueber,  jftis  Ecclesiasticum  universum. —  Liber  IV^ :  Sponsalia 

et  Matrimonium,  Ingolstadii,  1716. 
*ScHNiTZER,  Katholisches  Eherecht,  Freiburg  i.  Br.,  1898  (according  to 

the  4"^  edition  of  Weber,  Die  Canonische  Ehehindernisse). 
ScHULTE,  Handbuch  des  katholischen  Eherechts,  Giessen,  1855. 
SicA,  Casus  conscientice  resoluti  in  missione  Kiang-Nan,  ed.  3*,  Chang- 

Hai,  1895. 
SiLBERNAGL,  Lchrbuch  des  katholischen  Kirchenrechts,  2«  aufl.,  Regens- 

burg,  1890  (46  aufl.  :  1903). 

*  Theologia  Mechliniensis,   Tractatus  de  Sponsalibus  et  Matrimonio^ 

6*  ed.,  Mechlinise,  191 1. 
Trampe,  Tractatus  de  Matrimonio  (Berthier),  ed  5*,  Graviae,  1911. 
Vacant-Mangenot,  Dictionnaire  de  Thcologie  catholique,  Paris :  V  Adul- 

tere,  celibat,  divorce,  etc. 

*  Van  de  Burgt-Schaepman,  Tractatus  de  Matrimonio,  3''  edit.,  !•"  vol., 

Ultrajecti,  1908. 
Vering,  Lehrbuch  des  katholischen,  orientalischen  und  protestantischen 
Kirchenrechts,  Freiburg  i.  B.,  1893. 


3tX 


VicTORius  AB  AppELTERUfManuale  tnissionariortim,Pars^^:  De  Matri- 

monio,  2»  ed.,  Brugis,  1911. 
Vlaming,  PrcBlcctiones  de  Jure  Matrimonii,  3  vol.,  Warmundas,  1S98, 

1902  et  1903. 
VoGT,  Das  kirchliche  Bherecht,  y  Auflage,  Coin,  1910. 

*  Von  Scherer,  Handbuch  des  Kirchenrechts,  Graz,  1898,  IV  Buch. 

*  Wernz,  Jus  Decretalititn.  —  T.  IV^  :  Jus   matrimoniale  Ecclesice 

Catholicce,  Romas,  1904  (*). 
Weltzer  u.  Welte,  Kirchenlexikon,  V°  Bhe,  Ehescheidung,  Ehehin- 

dernisse,  Eheverlobniss. 
C.  WiLLEMs,  Philosophia  Moralis,  Treviris,  1908. 
Zitelli,  Apparatus  Juris  ecclesiastici,  3*  ed.,  Ratisbonae,  1903. 

*  Zhishman,  Das  Eherecht  der  Orientalischen  Kirche,  Wien,  1864. 

2.  Special. 

Aertnys,  Bruidsexamen  en  Bruidsonderricht.  —  N.  K.  Stemmen,  1906, 

p.  67  S3. 

Alberti,  Commetitarium  in  recens  decretum  de  sponsalibus  et  matrimonio, 

Romas,  1908. 
Appelman,  Voor  en  in  het  Huwelijk.  —  Onderrichtingen  voor  verloofden 

engehuwden,  Kevelaar,  1907. 
Arendt,  Analysis  theologico-canonica  Decreti  Ne  Temere  De  sponsalibus 

et  Matrimonio,  Romas,  1909  ;  item  apud  Analecta  ecclesiastica,  1908 

et  1909. 
Arquer  de,  Novissima  disciplina  sobra  Esponsalesy  Matrimonio,  2*  ed., 

Barcelona,  1910.  —  Supplemento,  191 1. 
Arribas,  Bxposicion  documentada y  completa  del  Decreto  «  A''^  Temere  ■», 

Madrid,  191 1. 
Ballet,  Dissertatio  canonica  de  potestate  Ecclesiae  in  statuendis  matri- 
monii impedimentis,  Argentorati,  1785. 
Balog,  Die  Bheformvorschri/ten  der  Dekrete  Tametsi  und  Ne  Temere, 

unddie  Bestrafung  des  Religiondieners  wegen  VoUzugs  der  Trauimg 

vor  dem  Nachweis  der  Zivilehe,  Stuttgart,  1910. 
Bangen,  Die  Romische  Curie,  Miinster,  1854. 

*  Bassibey,  Le  Mariage  devantles  Tribunaux  ecclesiastiques,  Paris,  1899. 
—  De  la  clandestinite  dans  le  mariage,  Paris,  1904. 

Barett,  Supplementa  editioni  17^^  Compendii  theologicB  Moralis  Sabetti- 
Barett.  —  Supplem.  primum:  Decretum  «  Ne  Temere  »,  Ratisbo- 
nae, 1909. 


I.  Recently  appeared  the  and  edition  of  vol.  IV  in  two  separate  parts.  We 
indicate  it :  Wernz*. 


XXI 


BocKENHOFF,  Dlc  UfiaufldsUchkeit  der  Ehe  (Glaube  und  Wissen),  Miin- 
chen,  1908. 

—  Das  netie   Kirchengesetz  betr.  die  Form  der  Eheschliessung.  — 
Strassb.  Diozesanblatt,  1907,  p.  550  ss. ;  1908,  p.  196  ss.  and  532  ss. 

Besson,  De  la  publicite  des  fiangailles  et  dii  mariage  dans  la  nouvelle 
legislation.—  N.  R.  theol.,  t.  XXXIX  (1907),  p.  608-620;  t.  XL 
(igo8),  p.  20-36,  75-91, 142-170  and  p.  276-297,  650-668,  724-737. 

BoNOMELLi,  //  Divorzio,  Roma,  1910. 

*  BouDiNHON,  Le  Mariage  et  les  Fiangailles,  Paris,  1908. 

—  Le  Mariage  Religieux  et  les  Proces  en  nullite,  Paris,  1900. 
BovENs,  Dti  Divorce  civil,  Bruxelles,  1904. 

Brillaud,  Traits  des  empechements  et  des  dispenses  de  mariage,  Paris,  1871. 
Caillaud,  Manuel  des  Dispenses,  a  I'usage  du  cure,  du  confesseur  et  de 

Vofficial,  5«  ed.,  Paris,  1882. 
Choupin,  Valetir  des  decisions  doctrinales  et  disciplinaires  du  Saint-Siege, 

Paris,  1907. 

—  Les  Fiangailles  et  le  Mariage,  2^  6d.,  Paris,  1911. 
Collet,  Traite  des  Dispenses,  3  vol.,  Louvain,  1760. 

Creagh,  a  Commentary  on  the  Decree  «  A^^  Temere  »,  Baltimore,  1908. 
Cronin,  The  new  matrimonial  legislation,  2"^  ed.,  London,  1909. 
CiGoi,  Die  Unauflosbarkeit  der  christlichen  Ehe  und  die  Ehescheidung 

7tachSchriftund  Tradition,  Paderborn,  1895. 
Das  Dispenswesen  in  Ehesachen,  (Anzeigeblatt  f.  d.  Erzdiozese  Freiburg). 

—  Archiv  f.  k.  Kirchenr.,  1912,  p.  490-505. 
De  Becker,  Legislatio  nova  de  forma  substantiali  quoad  sponsalia  et  ma- 

trimonium,  Lovanii,  1908. 

*  De  Justis,  De  Dispensationibus  Matrimonialibus,  Lucae,  1691. 
Delassus,  V Anteriorite  des  formalites  civiles  sur  le  sacrement  dans  le 

Mariage,  Lille,  1906. 

De  Meester,  De  Reformatione  Curies  Romance,  Brugis,  1909. 

Denner,  Die  Ehescheidung  im  neuen  Testamente.  —  Die  Auslegung  der 
neutestamentlichen  Schrifttexte  ueber  die  Ehescheidung  bei  den  Vdtern, 
historisch-kritisch  dargestellt,  Paderborn  und  Wiirzburg,  1910. 

Deshayes,  Questions  pratiques  de  droit  et  de  morale  sur  le  mariage 
(clandestmite),  Paris,  1898. 

De  Smet,  Commentarius  in  Decretum  de  Sponsalibus  et  Matrimonio,  Bru- 
gis, 1908. 

—  Over  de  Echtscheiding,  Brugge,  191 1. 

Desplats,  De  la  Depopulation  par  I'Infecondite  voulue.  —  Brochure  inser- 
ted in  the  tract :  Pour  I'Honnetete  conjugale,  p.  31-67,  Louvain,  1910. 

Detzel,  Kiirze  systematische  Erkldrung  der  Dekrete  Ne  Temere  und 
Provida,  Passau,  1908. 


xxu 


DiDON,  IndissolubiliU  et  Divorce,  5'  ^d.,  Paris,  1880. 

Di  Pauli,  Kommentar  zum  DekreteNe  Temere,  Gratz  u.  Wien,  1909. 

DoMAicA,  Decreti  «  Ne  Temere  »  De  Sponsalibus  et  Matrimonio  Com- 

mentarius  canonico-moralis,  Victorias,  1908. 
Ehrler,  Glilckliches  Eheleben  —  Ehelehre,  Mergentheim,  1911. 
EssER,  Z ending  en  Polygamie,  Baarn,  Hollandia-drukkerij,  1905. 

*  Ferreres,  Los  Esponsalesy  el  Matrimonio,  5a  ed.,  Madrid,  1911. 

—  La  Curia  Romana  segun  la  Novisima  Disciplitia  decretada  por  Pio 
X,  Madrid,  191 1. 

Feye,  Dissertatio  canonica  de  Matrimoniis  mixtis,  Lovanii,  1847. 
FormulcB  Apostoliccs  Datarioe  pro   matrimonialibtis   Dispensationibus, 

Romas,  1901. 
FoRSTMANN  en  AusEMs,  Het  Neo-Malthusianisme,  Utrecht,  1911. 

*  FouRNERET,  Le  DomicHe  matrimonial.  — Principes  juridiques,  evolu- 

tion historique,  Paris,  1906. 
Gennari,  Breve  commento  delta  nuova  legge  sugli  sponsali  e  sul  Matrimo- 
nio, Roma,  1908. 

*  GioviNE,  De  Dispensationibus  matrimonialibus,  2  vol.,  Neapoli,   1863. 
GoNTHiER,  La  Publicite  des  Mariages.  —  Commentaire  du  Decret  «  Ne 

Temere  »,  Montreal,  1908. 
Grandclaude,  Regies  pratiques  touchant  la  cooperation  au  divorce  civil, 

Paris,  1887. 
GuTMANN,  GlUckliches  Eheleben  —  Erziehungslehre,  Mergentheim,  1911. 
Hamburger,  Het  Vrije  Huwelijk  (Pro  in  Pro  en  Contra  uitgavej,  Baarn, 

1905. 
Haring,  Das  neue  Ehedekret  Ne  Temere,  Graz,  1907. 
Heiner,  Gilltigkeit  oder  Ungiiltigkeit  der  Zivilehen,  mit  besonderer  Rilck- 

sicht  auf  Deutschland.  —  Archiv.  f.  k.  Kirchenr.,  1909,  pp.  471-491. 

—  Das  neue  Verlobnis-und  Eheschliessungsrecht,  Miinster,  1908. 
Heuser,  De  Potestate  statuendi  impedimenta  dtrimentia,  pro  fidelium 

matrimoniis  soli  EcclesicB propria,  Lovanii,  1853. 
Hilling,  Die  Romische  Curie,  Paderborn,  1906. 

—  Die  Re/ormen  des  Papstes  Pius  X  auf  dem  Gebiete  der  kirchenrecht- 
lichen  Gesetzgebung,  Bonn,  1909. 

Hizette,  Les  Fian^ailles  et  le  Mariage,  Namur,  1908. 

HoLLWECK,  Das  Civileherecht  des  Biirgerlichen  Gesetzbuchs,  dargestellt  im 

Lichte  des  canonischen  Eherechts,  Mainz,  1900. 
Instructiones  contra  vitiiim  onanismi  ab  Episcopis  Belgii  parochis  et  con- 

fessariis  propositce.  —  Collationes  Brugenses,  t.  XIV,  1909,  p.  453-461. 
Joder,  Formulaire  matrimonial,  y  ed.,  Paris,  1891. 
Karst,  Commentar  zu  dem  Dekrete  iiber  die  Form  der  Verlobnisse  tend  der 

Eheschliessung,  Limburg,  1908. 


XXIII 


KiEFER,  Nova  decreta  de  Sponsalibus  et  Malrimonio,  Eystadii,  1910. 

Knecht,  Die  neue  eherechtliche  Dekrete,  Koln,  1908. 

Knock,  La  Nouvelle  Legislation  canoniqtie  concernant  les  Fiangailles  et 

le  Manage. —  R.  eccl.  de  Liege,  t.  Ill,  p.  222  ss.,  277  ss.,  341  ss., 

et  t.  IV,  p.  12  ss. 

—  L'Onanisme  Conjugal  et  le  Tribunal  de  la  Penitence,  Liege,  1910. 

—  L'Education  de  la  Chastete,  Liege,  1912. 

KoRUM,  Hirtenbrief  ueber  die  gemischten  Ehen,  vom  26  Januar  1903, Trier. 
Lavialle,  Decisions  Romaines  sur  le  Divorce  civil,  Perigueux,  1899. 

*  Lega,  Prcelectiones  de  Judiciis  ecclesiasticis,  1.  IP,  vol.  IV""  (especially 

Part,  tit.  VII) :  De  Processu  Judiciali  in  causis  matrimonialibus. 
Leinz,  Der  Ehevorschrift  des  Concils  von  Trient  —  Ausdehnung  und  heu- 

tige  Geltung,  Freiburg  i.  B.,  1888. 
Lemozin,  La  Natalite  en  France  et  a  I'etranger.  —  Etudes,  t.  CXXIX 

(1911),  p.  771-794. 
Leitner,  Die  tridentinische  Eheschliessungsform  nach  der  Konstitution 

Pius  X,  Provida,  Regensburg,  1906. 

—  Die  Verlobungs-  und  Eheschliessungsform,  Regensburg,  1908. 
McNicHOLAS,  The  new  Legislation  on  engagements  and  marriage,  Phila- 
delphia, 1908. 

Melata,  De  Potestate  qua  matrimonium  regitur  et  de  jure  matrimoniali 

civili  apud  prcecipuas  nationes,  Romas,  1903. 
Mercier  (Card.),  Lettre  Pastorale  de  1909  :  Les  Devoirs  de  la  vie  conju- 

gale. 
MoNiN,  De  Curia  Romana,  Lovanii,  1912. 

Nardi,  Dissertatio  de  Sattctitate  Matrimonii  vindicata,  2^  ed.,  Romae,i896. 
NoLDiN,  De  Sexto  PrcBcepto  et  de  Usu  Matrimonii,  2^  ed.,QEniponte,  1900. 

—  Decretum  de  Sponsalibus  et  Matrimonio  S.  C.  C.  2  Aug.  1907  cum 
declaratione,  QEniponte,  1909. 

*  OjETTi,  In  Jus  Antepianum  et  Pianum  ex  Decreto  Ne  Temere,  Romas, 

1908. 

—  De  Romana  Curia,  Romas,  1910. 

*  Ott,  Die  Auslegung  der  neutestamentlichen  Texte  ueber  die  Eheschei- 

dung,  historisch-kritisch  dargestellt,  Miinster  i.  W.,  1911. 
Paquet,  Le  Probleme  moral  de  la  depopulation.  —  La  Revue  apologetique, 

1911,  p.  257-283. 
Pezzani,  De  Celebratione  sponsalium  et  Matrimonii  seu  commentarium  in 

Decretum  «  A^^  Temere  »,  ed.  3'^,  Romas,  1908. 
Pierantonelli,  Ordo  Judiciarius  in  praxim  traductus,  2  vol.,  Romae, 

1904-1906. 
PisANi,  Les  nullites  de  Mariage,  Paris,  1905. 


XXIV 


PiscETTA,  De  Luxuria  et  de  Usu  Matrimonii,  Augustas  Taurinorum,  1908. 

*  Planchard,  Les  Decisions  du  Si-Siege  et  la  Loi  du  Divorce.  —  N.  R. 

th.,  XVIII,  p.  473-501- 

—  Dispenses  Matrinwniales,  Angouleme,  1882. 

*  PoMPEN,  Tractatus  de  Dispensationibus  et  de  revalidatione  Matrimonii, 

Amstelodami,  1897. 

*  PuTZER,  Commentarium  in  Facilitates  Apostolicas,  5a  ed.,  Neo-Eboraci, 

1898. 

*  Pyrrhus  Corradus,  Praxis  Dispensationum  Apostolicarum,  Colonise, 

1717. 

*  Resemans,  De  Competentia  civili  in  vinculum  conjugate  infidelium, 

Romas,  1887. 
Rett,  Die  Gewalt  der  Regularbeichtvater  ueber  Geliibde.  —  Zeitschr.  f.  k. 

Theologie,  1910,  p.  641-658. 
Rossi,  De  Consensu  Matrimoniali,  Romae,  191 1. 

—  De  Impedimenta  Impotentiae,  Romas,  19 10. 

Rousseau,  Renseignements pratiques  a  I'usage  du  cure  et  du  confesseur  sur 
la  Legislation  canonique  du  mariage,  Paris,  1905. 

Sagnori,  Exemplar  actorum  forensium,  quibus  inquirendum  est  de  matri- 
monii nullitate  ex  capite  impotentice  ac  de  Matrimonii  rati  et  nan  con- 
summati  diremptione,  ed.z^,  Romas,  1902. 

Salsmans,  Kerk  en  Staat  in  zake  huwelijk  en  echtscheiding,  Antwerpen, 
1909. 

ScHAEPMAN,  Het  Burgerlijk  Huwelijk  der  Roomsch-Katholieken  in  Neder- 
land,  Utrecht,  1900. 

—  Het  aangaan  van  het  Huwelijk,  Utrecht,  1908. 

ScHAUB,  Die  neuesten  Bestimmungen  aufdem  Gebiet  des  katholischen  Ehe- 

rechts,  Regensburg,  1911. 
Sehling,  Die  neuesten  pdpstlichen  Brlasse  auf  dem  Gebieie  des  Rechtes 

insbesondere  des  Eherechts.  —  Neue  KirchUche  Zeitschrift,   1908, 

p.  384-404  and  436-453. 
Slater,  The  new  Marriage  Law. — The  Month,i9o8,  p. 337  ss.and  633  ss. 
Thephany,  Traits  des  Dispenses  matrimoniales,  Paris,  1889. 
Trenta,  La  nuova  disciplina  sulla  celebrazione  degli  sponsali  e  del  Matri- 

monio,  3'*  ed.,  Ascoli  Piceno,  1909. 
Van  de  Burgt,  Tractatus  de  Dispensationibus  Matrimonialibus,  4*  ed., 

Sylvas-Ducis,  1865. 
*  Van  den  Acker,  Decreti  c  Ne  Temere  »  de  Sponsalibus  et  Matrimonio 

Inter pretatio,  Buscoduci,  1909. 
Verkouteren,  Het  Vrije  Huwelijk  {Contra,  in  Pro  en  Contra  uitgave), 

Baarn,  1905. 


XXV 


*  Vermeersch,  De  Forma  Sponsalium  ac  Matrimonii,  Brugis,  1908. 

—  Un  grave  peril  social,  Tournai,  1909. 

—  La  Peiir  de  I' En/ant  dans  les  classes  dirigeantes,  Louvain,  1909. 

—  Le  Probleme  de  la  Natalite  en  Belgique,  Bruxelles,  1910. 

—  De  Casii  Apostoli,  Brugis,  191 1. 

ViLLiEN,  Le  Celibat  eccUsiastique  au  point  de  vue  dogmatique,  moral  et 
historique.  —  Revue  prat.  d'Apologetique,  t.  XI,  191T,  pp.  801-830. 

Waffelaert  (Mgr.),  Etude  de  Theologie  morale  sur  Vobligation  en  con- 
science des  his  civiles,  Tournai,  1884.  (Lois  du  Mariage,  p.  82-156). 

—  Question  du  Divorce. —  N.  R.  th.,  XVII,  p.  231-254  et  XVIII,  502-506. 
♦WouTERs,  Commentarius  in  Decretum  «  Ne  Tenter e  »,  3*  ed.,  Amstelo- 

dami,  1910. 

*  ZiTELLi,  De  Dispensationibus  matrimonialibus,  Romae,  1887. 


B.   TREATISES  ON  HISTORY   AND   CIVIL  LAW. 


1.  General. 

P.  Abram,  L' Evolution  du  Mariage,  Paris,  1908. 

Allegre,  Le  Code  civil  comments,  7^  ed.,  2  vol.,  Paris,  1899. 

Apologie  du  mariage  chretien,  Strasbourg,  1788. 

AviGDOR,  Examen  critique  des  tendances  modernes  dans  le  mariage  et 

vers  V  Union  libre,  Paris,  1909. 
AuBRY  ET  Rau,  Cours  de  droit  civil  frangais,  4^  edition,  Paris,  1873. 
Bebel,  La  Femme  dans  le  passe,  le  present  et  I'avenir  (Trad.  H.  Rave), 

Paris,  1891. 

*  Bishop,  New  Commentaries  on  Marriage,  Divorce  and  Separation,2  vol., 

Chicago,  i8gi. 
Chardon,  Histoire  des  Sacrements.  — Tome  VI«  :  Histoire  du  Sacrement 

de  Mariage,  Paris,  1745. 
Crj&tinon,  L' organisation  de  la  famille  dans  le  nouveau  Code  Allemand. 

—  Reforme  sociale  (1901),  t.  42,  pp.  154-181. 
CuQ,  Le  Mariage  a  Babylone,  d'apres  les  lois  de  Hammourabi.  —  Revue 

Biblique,  1905,  pp.  350-371. 
Daniel,  Le  Mariage  chretien  et  le  Code  Napoleon,  Paris,  1870. 
Daremberg  et  Saglio,  Dictionnaire  des  Antiquites  Grecques  et  Romaines, 

Paris,  1877-1912  (letter  T). 

*  Demolombe,  Cours  de  Code  civil,  edition  Beige,  Tome  II  :  Du  Mariage 

et  dela  Separation  de  corps,  Bruxelles,  1854. 
De  Roskovany,  Supplemenia  ad  Collectiones  m^numentorum  et  Littera- 


XXVI 


ttircB  de  matrimonio,  etc.  —  Tom.  I  :  De  matrimonio  in  Ecclesia  ca- 

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Dessaules,  Les  Erreiirs  de  I'Eglise  en  droit  naturel  et  canonique  sur  le 

Manage  et  le  Divorce,  Paris,  1894. 
Detrez,  Mariage  et  Contrat.  —  Etude  historique  sur  la  nature  sociale  du 

droit,  Paris,  1907. 
Du  Cange,  Glossarium  ad  scirptores  medicB  et  infimce  latinitatis,  Parisiis, 

1733-1737  ')  —  Supplementum,  Parisiis,  1766,  v°  Bathinodium,  v°  Fo- 

rismaritagium,  v°  Marcheta,  v°  Maritagium,  vo  Nuptiaticum. 

*  Esmein,  Le  Mariage  en  droit  canonique,  2  vol.,  Paris,  1891. 
Fonssegrive,  Mariage  et  union  litre,  Paris,  1904. 

*  Freisen,  Geschichte  des    canonischen  Eherechts  bis  zum  Verfall  der 

Glossenlitteratur,  2^  Aufl.,  Paderborn,  1893. 

*  Friedberg,  Das  Recht  der  Eheschliessung  in  seiner  geschichtlichen  Ent- 

wicklung,  Leipzig,  1S65. 

Geary,  The  law  of  marriage  and  family  relations,  London  and  Edin- 
burgh, 1892. 

Gibert,  Tradition  ou  histoire  de  I'Eglise  sur  le  sacrement  de  Mariage, 
Paris,  1725,  3  vol. 

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2  vol. 

Giraud-Teulon,  Les  Origines  du  Mariage  et  de  la  Famille,  Paris  1884. 

*  Howard,  A  History  of  Matrimonial  Institutions,  Chicago  and  London, 

1904. 
JoLY,  La  Crise  du  Mariage.  —  Le  Correspondant,  1902,  Janvier,  p.  127  ss. 
Laurent,  Principes  de  Droit  Civil,  Bruxelles,  1876-1878,  31  vol. 

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*  Lefebvre,  Legons  d' introduction  generate  a  I' histoire  du  droit  matrimo- 

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—  Cours  de  Doctor  at  sur  V  Histoire  du  Droit  matrimonial  frangais :  Le 
Droit  des  Gens  maries,  Paris,  1908. 

*  Lehr,  Le  Mariage,  le  Divorce  et  la  Separation  de  corps  dans  lesprinci- 

paux  pays  civilises,  Paris,  1899. 
Le  Ridant,  Examen  de  deux  questions  importantes  sur  le  mariage,  1573 

(anonymous). 
Leroy,  La  Religion  des  Primitifs,  Paris,  1909. 
Locr6,  La  Legislation  civile,  commerciale  et  criminelle  de  la  France,  ou 

commentaire  et  complement  des  Codes  Frangais,  16  vol.,  Paris,  1827- 

1829. 

*  LoENiNG,  Geschichte  des  Deutschen  Kirchenrechts,  Strassburg,  1878,  2  B. 
Loslever,  Amour  libreoufidelite,  Louvain,  Uystpruyst,  1911. 


XXVII 


LucKOCK,  The  history  of  marriage,  Jewish  and  Christian,  in  relation  to 
divorce  and  certain  forbidden  degrees,  London,  1895. 

*  MoY,  Das  Eherecht  der  Christen  in  der  morgenldndischen  und  abend- 

Idndischen  Kirche  bis  zur  Zeit  Karls  des  Grosses,  Regensburg,  1833. 
Naquet,  Vers  I'  Union  libre,  Paris,  1908. 

Nystrom,  Das  Geschlechtsleben  und  seine  Gesetze,  8«  Aufl.,  Berlin,  1907. 
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*  Planiol,  Traite  elementaire  de  droit  civil,  5^  ed.,  Paris,  1908-1909,3  vol. : 

Tome  i^"",  pp.  228-520. 

RoGuiN,  Traite  de  Droit  civil  compare  :  1°  Le  Mariage,  Paris,  1904 ;  2"  Le 
Regime  Matrimonial,  Paris,  1905. 

Roland  et  VVouters,  Guide  pratique  de  I'officier  de  I'Etat  civil  en  Bel- 
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ScHMiTz,  H.,  Die  Bussbiicher  und  die  Bussdisciplin  der  Kirche,  Mainz, 
1883. 

SoHM,  Das  Recht  der  Eheschliessung  aus  dem  deutschen  und  canonischen 
Recht  geschichtlich  entwickelt,  Weimar,  1875. 

Stocquart,  Aper^u  de  ['Evolution  juridique  du  Mariage  ;  —  France,  Pa- 
ris, 1905. 

*  Thiry  Victor,  Cours  de  Code  civil,  annote  au  point  de  vue  de  la  doc- 

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Liege,  1892-1893. 
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Van  Hemel,  De  Formis   civilibus  matrimonio  christiano  prcsmittendis 

earumque  effectibus  et  impedimentis,  Mechlinias,  1863. 
ViOLLET,  Histoiredu  Droit  civil  frangais,  2«  ed.,  Paris,  1893. 
Wasserschleben,  Die  Bussordnungen  der  Abendldndischen  Kirche,}rlal\e, 

1851. 

*  Watkins,  Holy  matrimony,  London,  1895. 

Westermarck,  Origine  du  Mariage  dans  I'Espece  humaine,  Paris,  1895. 
P.  WiLLEMs.  Le  Droit  Public  Romain,  6^  ed.,  Louvain,  1888. 

2.  Special. 

Basdevant,  Des  rapports  de  VEglise  et  de  I'Etat  dans  la  Legislation  du 

Mariage,  Paris,  1900. 
Bernard,   Etude  historique,  juridique  et  critique  sur  le  consentement  des 

ascendants  au  Mariage,  Paris,  1899. 


XXVIII 

Besse,  La  Recente  Evolution  du  Divorce  en  France.  —  Revue  pratique 

d'Apologetique,  1910,  torn.  VI,  pp.  321-348. 
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Braudhuber  von  Etschfeld,  Ueber  Dispensation  und  Dispensationsrecht, 

Leipzig,  1888. 
*  Caron,  De  V Alliance  ou  Affinite  —  Etude  d'Histoire  et  de  droit  com- 
pare, Paris,  1901. 
Carteron,  Du  Mariage  Putatif  et  des  Effets  de  la  Nullite  en  general  en 

matiere  de  Mariage,  Paris,  1907. 
Castan,  Des  seconds  Mariages,  Paris,  1908. 
CLAEYs-BoiiiiAERT,  De  la  reconnaissance  et  de  faction  alimentaire  des 

en/ants  naturels.  —  CoUationes  Gandavenses,  1910,  pp.  269-283. 
Colin,  Des  Fiangailles  et  des  Promesses  de  Mariage,  Paris,  1881, 
CoMBiER,  Essai  sur  le  Divorce  et  la  separation  du  corps,  Paris,  1881. 
Corbet,  Des  oppositions  au  Mariage,  Paris,  1906. 
Coulon,  Le  Divorce  et  la  separation  de  corps,  torn.  I,  Paris,  1890. 
—  Le  Divorce  par  consentement  mutuel,  sa  necessite,  sa  moralite,  Paris, 

1902. 
CouRREGE,  Les  Enfants  dans  le  Divorce  et  la  separation  de  corps,  Paris- 
Toulouse,  1910. 
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1907. 
Cruppi,  Le  Divorce  pendant  la  Revolution  (1792-1804),  Paris,  1909. 
De  Foras,  Le  Droit  du  Seigneur  au  Moyen-Age,  Chambery,  1886. 
Desforges,  Etude  historique  sur  la  formation  du  Mariage  en  Droit 

Romain  et  en  Droit  Frangais,  Paris,  1902. 
Devos,  De  Gehuu'de  Vrouw  en  hare  behandeling  door  de  wet,  Antwerpen, 

1904. 
DiECKHOFF,  Die  kirchliche  Trauung,  ihre  Geschichte  im  Zusamntenhang 

des  Eheschliessungsrechts  und  ihre  Verhdltniss  zur  Civilehe,  Rostock, 

1878. 
Duchesne,  Origines  du  Culte  chretien,  3*  ed.,  Paris,  1902. 
DujON,  De  V Empechement  au  mariage  qui  resulte  des  Ordres  Sacres  dans 

Vhistoire  du  Droit,  Paris,  1902. 
Dumas,  Histoire  de  Vindissolubilite  du  Mariage  en  droit  frangais,  Paris, 

1902. 


XXIX 


Ebeling,  Ehescheidung,  Eheschliesstmg  und  kifhUche  Trauunsc,  Guters- 

loh,  1904. 
Engert,  Ehe-  wid  Familienrecht  der  Hebrder,  Miinchen,  1905. 
EscARD,  Des  Fiancailles  d  de  la  necessitS  de  les  /aire  intervenir  dans  la 

loi  du  manage.  —  Reforme  sociale  (1901),  t.  42,  pp.  888-898. 

*  Fahrner,  Geschichte  der  EhescJieidicng  im  kanonischen  Recht,  1^  Theil, 

Freiburg  i.  B.,  1903. 
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tur-historische  Sttidie,  Freiburg  i.  B.,  1908. 
Faurey,  Le  droit  ecclesiastique  matrimonial  des  Calvinistes  frangais, 

Paris,  1910. 
Franz,  Die  kirchlichen  Benediktionen  tm  Mittelalter,  Freiburg  i.  B., 

1909. 
Friedberg,  Verlobung  und  Trauung,  Leipzig,  1876. 
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schichtliche  Abhandlungen  und  Untersuchungen ,  Paderborn,  1897,  I, 

pp.  121-155. 
Galichet,  L'Eglise  Attglicane  et  VEtat,  Paris,  1909. 
Gaugusch,  Das  Ehehinderniss  der  hoheren  Weihe,  VVien,  1902. 
Geffcken,  Zur  Geschichte  der  Ehescheidung  vor  Gratian,  Leipzig,  1894. 

*  Genestal,  Histoire  de  la  legitimation  des  en/ants  naturels  en  droit  cano- 

nique,  Paris,  1905. 

Gerrard,  Marriage  and  Parenthood,  New- York,  1911. 

Gilbert,  Le  Mariage  des  Pretres,  Paris,  1903. 

GiLLMANN,  Das  ehemals  zwischen  der  soboles  ex  secundis  nuptiis  und  den 
Blutsverwandten  des  verstorbenen  Eheteiles  bestehende  Ehehinderniss, 
Mainz,  1909,  (taken  from  the  Archiv  f.  k.  Kirchenr.,  1909,  pp. 447-470). 

—  Das  Ehehinderniss  gegenseitigen  geistlichen  Verwandtschaft  der  Pa- 
then.  —  Archiv  f.  k.  Kirchenr.,  igo6,  pp.  688-714. 

—  Das  Ehehinderniss  der  geistlichen  Verwandtschaft  aus  der  Busse, 
Mainz,  1910,  (taken  from  the  Archiv  f.  k.  Kirchenr.,  1910,  pp. 236-261, 
and  1911,  p.  178  s.). 

—  Zur  Geschichte  der  kanonischen  Ehescheidutig.  —  Der  KathoUk, 
1904,  t.  XXIX,  p.  191-211. 

Glasson,  Le  Mariage  civil  et  le  Divorce,  Paris,  1880. 

Gore,  The  question  of  divorce,  New-York,  1911. 

Hanauer,  Coutumes  matrimoniales  au  Moyen-Age.  —  Memoires  de  I'Aca- 

demie  de  Stanislas,  5"  Serie,  t.  X(i892),  Nancy,  1893,  pp.  253-312. 
HussAREK  VON  Heinlein,  Die  bedingte  Eheschliessung,  Wien,  1892. 
HuYTTENs,  Discussions  du  Congres  National  de  Belgique,  Bruxelles,  1844, 

5  vol. 


XXX 


Jacquart,  Essais  de  statisliquc  morale  —  Le  Divorce  et  la  Separation  de 
corps,  Bruxelles,  1909. 

KissELSTEiN,  L' attitude  dti  clerge  fran^ais  dans  la  longue  lutte  de  VEglise 
et  de  I'Etat  att  sujet  du  mariage.  Report  on  the  works  of  the  «  Se- 
minaire  historique  >  of  the  University  ofLouvain,  1908-1909,  in  t  An- 
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Koch,  Die  Ehe Kaiser  Henrichs limit  Kunigunde,  Koln,  1908. 

KoGLER,  Beitrdge  zur  Geschichte  der  Rezcption  und  der  Symbolik  der 
legitimatio  per  stibseqiiens  matrimonium,  Weimar,  1904. 

-  KosTLER,  Die  Vdterliche  Ehebewilligung  —  Eine  kirchenrechtliche 
Untersuchung  auf  rechtsvergleichender  Grundlage  (Kirchenrechtliche 
Abbandlungen  herausgegeben  von  Dr  Stutz),  Stuttgart,  Enke,  1908. 

Lafourcade,  Etude  historique  desfiangailles,  Bordeaux,  1902. 

Laurent  G,,  La  Repudiation  et  le  Divorce  par  consentement  mutuel, 
Paris,  1904. 

Leclercq  H.,  La  Legislation  conciliaire  relative  au  cSlibat  ecclesiastique. 
—  Appendix  VI  to  Tome  II  of  his  edition  Hefele-Leclercq,  His- 
toire  des  Conciles,  pp.  1321-1348  (•). 

Leclercq  P.,  Loi  du  6  Avril  1908  sur  la  recherche  de  lapaternite  et  de  la 
maternite  de  V enfant  naturel,  Bruxelles,  1908. 

Ledru,  Comment  se forme  le  Mariage  en  Droit  Romain,  Paris,  1874. 

*  Lemaire,  Le  Mariage  civil,  Paris,  1901. 

Lichtenberger,  Divorce  —  A  Study  in  social  Causation,  New  York, 
1909. 

L0TTH6,  Le  Droit  des  gens  maries  dans  les  coutumes  de  Flandre,  Paris, 
1909. 

Manuale  et  processionale  ad  usum  insignis  ecclesiae  Eboracensis  (-). 
Appendix  I :  Manuale  ad  usum  ecclesiae  Sarum  (*) ;  Appendix  II  : 
Manual  offices  from  the  Hereford  missal  and  breviary  (*)  (Publica- 
tions of  the  Surtees  Society),  1875. 

Marguerite  P.  et  V.,  L'Elargissement  du  Divorce,  2«  edit.,  Paris,  1902. 

*  Martene,  De  Antiquis  EcclesicB  Ritibus,  Rotomagi,  1700. 

Martin  O.,  La  crise  du  Mariage  dans  la  Legislation  intermediaire  (1789- 

1804),  Paris,  1901. 
Monumenta  Ritualia  EcclesicB  Anglican^.  —  The  occasionnal  offices  of 


1.  This  same  dissertation  may  be  found  in  the  Dictionnairc  d'Archeologie  chri- 
tienne,  under  Celibat  (1910). 

2.  citatur  :  York  manual. 

3.  citatur :  Sarum  manual. 

4.  citatur  :  Hereford  manual. 


XXXI 


the  Church  of  England  according  to  the  old  use  of  Salisbury... 

(by  William  Maskell),  2"<J  ed.,  Oxford,  1882  ('). 
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extrinseques  en  droit  international  prive,  Paris,  1908. 
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col.  1416-1428. 
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Zeitschr.  f.  k.  Theologie,  1902,  p.  131-152. 
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recht,  vol.  V,  pp.  182-227;  V°  Scheidungsrecht,  vol.  XXI,  pp.  858-895  ; 

V°  Familie  und  Ehe  bei  den  Hebrdern,  vol.  V,  pp.  738-750, 
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par  la  societe  de  legislation  comparee,  I,  Paris,  1910. 
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Fiangailles,  Grenoble,  1899. 
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Eheschliessung  Geschiedener,  Gotha,  1882. 
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logische  Quartalschrift,  1905,  p.  78  ss.,  et  1911,  90-126. 

*  Scharnagl,D«s  Feierliche  Geliibde  als  Ehehinderniss  in  seine geschicht- 

liche  Entwicklung  dargestellt,  Freiburg  i.  B.,  1908. 

I.  Citatur :  Salisbury  Manual, 


XXXII 


ScnyiiD-r,  Jus primcB  noctis  —  Eine  geschichtliche  Untersuchung,  Frei- 
burg i.  B.,  1881. 

ScHMiTT-FALCKENBERG,£i»5  studtc  uebcr  das  Verlobniss  in  England,  Mar- 
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ScHRORs,  Hinkmar  Erzhischofvon  Reims,  Freiburg  1.  B.,  1884. 

ScHULZE,  Eherecht  und  Ehegesetzgebung  in  den  Vereinigten  Staatot  Nord- 
Amerikas.  —  Th.  Pr.  Quartalschr.,  1909,  p.  748-773. 

—  Kirchlich-katholisches  Eherecht  und  Eheverhaltniss  in  den  Vereinig- 
ten Staaten  Nord-Amerikas,  Ibidem,  1910,  pp.  790-826. 

Sdralek,  Hinkmars  von  Reims  kanonistisches  Gutachten  iiber  die  Ehe- 
scheidung  des  Konigs  Lothar  II,  Freiburg  i.  B.,  1881. 

*  Sehling,  Die  Wirkungen  der  Geschlechtsgemeinschaft  auf  die  Ehe, 

Leipzig,  1885. 

—  Die  Unterscheidung  der  Verlohnisse  im  kanonischen  Recht,  Leipzig, 
1887. 

SiLBERNAGL,  Verfassung  und  gegenwdrtiger  Bestand  sdmtlicher  Kirchen 

des  Orients  (2=  Auflage  von  Schnitzer),  Regensburg,  1904. 
Singer,  De  la  Publicite  du  Mariage,  Lille,  1907, 
SoHM,  Trauung  und  Verlobung,  Weimar,  1876. 

*  Stiegler,  Dispensation,  Dispensationswesen  und  Dispensationsrecht,  im 

Kirchenrecht  geschichtlich  dargestellt,  Mainz,  1907. 
Thaner,  Die  Personlichkeit  in  der  Eheschliessung,  Gratz,  1900. 
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ongines  du  celihat  ecclesiastiqiie. 
Vantroys,  Etude  historique  etjuridique  sur  le  consentement  des  parents  au 

mariage  de  leurs  enfants,  Paris,  i88g. 
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Wii.iAEii,L'Empechement  de  Mariage  —  Sa  notion  juridique  d'apres  I'His- 

toire.  —  Canon,  contemp.,  1903,  p.  420  ss. 

—  Les  Reformes  du  Droit  canonique   et  les  Posidata  du  Concile  du 
Vatican.  —  Can.  contemp.,  1905,  passim. 

Welschinger,  Le  Divorce  de  Napoleon,  Paris,  1899. 
WiLKiNs,  The  history  of  divorce  and  re-marriage,  London,  1910. 
Zarzychi,  Le  Divorce  et  la  Separation  de  corps  compares  dans  leurs  cau- 
ses, Paris,  1903. 

C.  Treatises  relating  to  physiology. 

*  Antonelli,  Medicina  Pasloralis  in  ustim  confessariorum  et  curiarum  ec- 

clesiasticarum,  2  vol.,  Romas,  Pustet,  1905  (2*  ed.,  1907  et  3*ed.,  in 
three  volumes,  1909). 


XXXIII 

—  De  Conceptu  ImpotenticB  d  Sterilitatis  relate  ad  matrimonium, Pustet, 
1900. 

— Pro  Conceptu  [mpotentice  et  Sterilitatis  relate  ad  matrimonium,Pustet, 
1901. 

—  De  Mulieris  excisce  Impotentia  ad  matrinuMium,  Pustet,  1903. 
Baur,  Gliickliches  Eheleben. —  Gesundheitslehre,  Mergentheim,  191T. 
Brouardel,  Le  Mariage,  Nullite,  Divorce,  Pkris,  1900. 
Cangiamilla,  Sacra  Embryologia,  Ypris. 

Capellmann,  Medicina  Pastor alis,  ed.  7^,  Aquisgrani,  1890. 

CoppENs,  Morale  et  Medecine,  Paris,  1901. 

Damen,  Kinder sterfte,  Neo-Malthusianisme,  Huwelijk.  —  De  Katholiek, 

1904,  II,  p.  6  ss.,  93  ss.,  290  ss. 
Die  Ehe,  ed.  5%  Donauworth,  1904,  Auer. 
*  EscHBACH,  Disputationesphysiologico-theologiccB,  2*  ed.,  Romae,  1901. 

—  Casus  de  Feminea  Impotentia,  Romae,  1899. 
FoREL,  La  Question  Sexuelle,  Paris,  1906. 

Francotte,  De  quclques  points  de  morale  sexuelle  dans  ses  relations  avec 
la  medecine.  —  Annales  de  la  Societe  scientifique,  1906-1907,  supple- 
ment, Louvain,  1907. 

Gemelli,  Non  Mcechaberis  —  Disquisitiones  mediccB  in  usum  Confessa- 
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Greidanus,  Geneeskundig  onderzoek  voor  het  huwelijk,  eene  zedelijke  ver- 
piichting,  Baarn,  1904. 

—  De  Leer  van  Malthus  een  leugen,  Baarn,  1904. 

KouwER,  Prof.  Treub  en  het  Nieuw-Malthusianisme,  Kampen,  1904. 

Nyhoff,  De  Noodzakelijkheid  van  geneeskundig  onderzoek  voor  het  huwe- 
lijk, Amsterdam,  1908. 

PiNKHOF,  Neo-Malthusianisme  (Contra  in  Pro  en  Contra  Uitgave;,  Baarn, 
HoUandia-drukkerij ,  1905. 

Stohr-Kannamuller,  Handhuchder  Pastor  ahnedizin,  Freiburg  i.  B.,  1909. 

SuRBLED,  La  Morale  dans  ses  rapports  avec  la  Medecine  et  I'Hygiene, 
4  vol.,  10=  ed.,  Paris,  1905. 

—  Autour  du  Mariage  {questions  controversees),  Paris,  2^  ed. 

ToPAi,  De  Necessitate  uteri  in  generatione  et  in  matrimonio,  2^  ed., Romae, 

1903. 
Treub,  Verspreide  Opstellen,  Haarlem,  1904  :  Hetvraagstuk  der  geslachte- 

lijke  onthouding  ;  Het  Neo-Malthusianismus. 
Wilhelm,  Das  Eheleben,  Regensburg,  1909. 


XXXIV 

II.  P6riodicals. 

Ada  ApostoliccB  Sedis*  —  Commentarium  officiale,  Romae. 

Acta  Sanctce  Sedis,  Romae, 

American  College  Bulletin,  Louvain. 

Ami  (V)  du  Clerge,  Langres, 

Archiv  fiir  Katholisches  Kirchenrecht,  Mainz. 

Canoniste  Contemporain,  Paris. 

Civilla  cattolica,  Roma, 

Collationes  Brugenses,  Brugis, 

Collationes  diaecesis  Tornacensis,  Tornaci. 

Collationes  Gandavenses,  Gandavi. 

Collationes  Namurcenses,  Namurci. 

De  Religiosis.  —  Supplementa  et  Monumenta,  Brugis. 

De  Katholiek,  Leyden-Utrecht. 

Der  KathoUk,  Mainz. 

Ecclesiastical  Review,  Philadelphia. 

Etudes,  ptibliees  par  les  Peres  de  la  Compagnie  de  Jesus,  Paris. 

//  Monitor e  ecclesiastico,  Roma. 

Irish  Ecclesiastical  Record  (the),  Dublin. 

La  Reforme  Sociale,  Paris. 

Les  Questions  ecclesiastiques,  Lille. 

Nederlandsche  Katholieke  Stemmen,  ZwoUe. 

Nouvelle  Revue  theologique,  Tournai. 

Pasicrisie  Beige,  Bruxelles. 

Pastor  Bonus,  Trier. 

Razony  Fe,  Madrid. 

Recherches  de  science  religieuse,  Paris. 

Revue  Apologetique,  Bruxelles. 

Revue  Augustienne,  Louvain. 

Revue  Benedictine,  Maredsous. 

Revue  Catholique  des  Institutions  et  du  Droit,  Lyon. 

Revue  d'Histoire  ecclesiastique,  Louvain. 

Revue  des  Sciences  ecclesiastiques  et  la  Science  catholique,  Paris-Arras. 

Revue  du  clerge  frangais,  Paris. 

Revue  ecclesiastique  de  Liege,  Liege. 

Revue  eccUsiastique  de  Metz,  Metz. 

Revue  pratique  d' Apologetique,  Paris. 

Revue  theologique frangaise,  Laval. 

Schweizerische  Kirchen-Zeitung,  Luzern. 

Scuola  Cattolica  (La),  Milano. 


XXXV 


Stimmen  aus  Maria-Laach,  Freiburg,  i.  B. 

Strassburger  Diozesanblatt,  Strassburg. 

Studien,  Amsterdam. 

The  Month,  London. 

Theologie  und  Glaube,  Paderborn. 

Theologisch-praktische  Quartalschrift,  Lintz. 

Theologische  Quartalschrift,  Tubingen. 

Vie  diocesaine,  Malines. 

Zeitschriftfiir  katholische  Theologie,  Innsbruck. 


BOOK  I 


BETROTHMENT 


BOOK  I 


BETROTHMENT 


Division. 

The  first  chapter  of  this  book  will  be  devoted  to  the  nature  oi  Division 
betrothment.  We  shall  treat  successively  of  the  meaning,  divi- 
sion, and  expediency;  the  constituent  elements; the  subject-matter 
and  the  various  adjuncts  of  the  sponsalitial  contract.  The  second 
chapter  will  deal  with  its  effects  ;  the  third  with  its  impediments  ; 
the  fourth  with  its  dissolution  ;  and  the  fifth  with  its  due  regula- 
tion. This  will  be  followed  by  an  appendix  treating  of  the  antenup- 
tial proclamaiions. 

Chapter  I. 

THE  NATURE  OF  BETROTHMENT. 

Article  1.  Meaning,  Division,  and  Expediency. 

2. 

Betrothment,  called  in  Latin  Sponsalia  (')  de  futuro  (*),   may  be    Meaning. 


1.  Sponsalia  are  so  called  a  spondendo.  <  This  expression  of  the  Roman  law  had 
its  origin  in  the  practice  that  prevailed  among  the  ancient  Romans.  He  who  wish- 
ed to  marry  a  girl  addressed  to  her  father  or  guardian  the  recognised  formula  : 
spondesne  ?,  and  he  replied  :  spondeo.  Hence  she  who  was  thus  promised 
in  marriage  was  known  as  the  sponsa,  and  he,  to  whom  she  was  promised,  as 
the  sponsus  ;....  the  day,  on  which  the  promise  was  made,  was  the  dies  sponsalis, 
and  the  entire  transaction,  or  promissory  contract,  was  called  the  sponsalia  ». 
Wernz,  o.  c,  IV,  n.  86.  Cf.  also  Lafourcade  o.  c,  p.  46  ;  Sehling,  Die  Unter- 
scheidung,  p.  20-31,  who  remarks  :  <  Spater  blicben  die  Ausdriicke  sponsa, 
sponsalia  bestehen,  trotzdem  an  Stelle  der  sponsio  die  freie  Consenserklarung 
trat  >.  The  word  sponsalia  is  also  used  in  a  wider  sense,  to  denote  the  gifts  that 
were  mutually  given  by  the  betrothed  parties. 

Before  the  sponsalia,  the  future  sponsa  was  successively  called  the  sperata, 
when  her  future  husband  began  to  court  her,  and  the  pacta,  when  the  young  man 
had  been  accepted  by  her  family.  Lafourcade,  o.  c,  p.  76, 

2.  The  limiting  phrase  «  de  futuro  >  first  appears  in  William  de  Campelli» 


4  THE  NATURE  OF  BETROTHMENT 

defined  as  a.  a  mutual  promise  of  future  marriage,  or  a  contract  by  which 
a  man  and  a  woman  engage  themselves  to  marry. 

Betrolhment  is  a  real  contract,  i.  e.  an  agreement  between  a 
man  and  a  woman,  by  which  they  mutually  give  and  mutually 
accept  a  binding  promise  to  enter  into  matrimony  at  a  future  date. 

Hence  it  is  not  sufficient  that  there  should  be  a  mere  proposal, 
or  a  promise  on  the  part  of  one,  even  though  that  promise  be 
accepted  by  the  other.  Both  the  promise  and  the  counter-promise 
are  requisite,  so  that  the  contract  may  be  strictly  bilateral  and  per- 
fectly synallagmatic  (*),  binding  in  justice  both  parties  to  a  future 
marriage. 

If  one  party  alone  promises,  and  the  other  party  accepts  that 
promise,  but  gives  no  counter-promise  (*),  an  obligation  ('),  some- 
times even  binding  in  justice  (*),  may  indeed  arise,  but  it  is  not  of 

(d.  H2i).  It  soon  became  customary,  from  the  time  of  Peter  Lombard.  It  was 
introduced  to  distinguish  the  sponsalitial  contract  from  the  contract  of  marriage 
itself.  In  the  terminology  that  was  then  in  vogue  a  married  woman  who  had 
not  yet  had  carnal  intercourse  with  her  husband  was  commonly  called  sponsa, 
in  opposition  to  one  who  had  had  such  intercourse,  and  was  then  termed  nupta. 
Thus  a  marriage  not  consummated  came  to  be  included  under  the  term  sponsalia, 
and  confusion  consequently  arose.  To  avoid  this,  the  authors  of  that  day  called 
the  marriage  contract  spmsalia  de  praesenti,  but  the  sponsalitial  contract,  which 
preceded  marriage,  sponsalia  defiituro. 

1.  A  contract  is  perfectly  synallagmatic  :  <  quand  les  parties  se  soumettent 
par  le  fait  meme  de  la  convention,  a  des  engagements  reciproques,  qui  forment 
ou  qui  sont  censes  former  pour  chacune  d'clles  l'6quivalent  de  la  prestation  k 
laquelle  elle  a  droit  ».  Mgr,  Waffelaert,  Dejiistitia,  t.  I,  n.  340,  in  agreement 
y/'iih  Aubry  &  Rati. 

2.  The  acceptance  01  a  promise  does  not  of  itself  imply  a  counter-promise;  for, 
it  may  very  well  happen  that  one  may  accept  a  promise  of  marriage  without 
binding  himself  to  the  other  party.  Nevertheless  it  frequently  happens  that  the 
acceptance  of  a  promise,  having  regard  to  the  circumstances  in  which  it  is  made, 
carries  with  it  the  force  of  a  counter-promise.  Cf.  Schmalzgrueber,  in  1.  IV 
Decret.,  tit.  I,  nn.  44-46. 

3.  In  the  abstract,  indeed,  from  a  promise  of  this  kind,  followed  by  no  counter- 
promise,  an  obligation  of  marrying  may  arise,  if  the  person  to  whom  the  pro- 
mise has  been  made  exacts  it.  But,  looking  at  the  matter  in  the  concrete,  the 
alleged  obligation  may,  as  a  rule,  be  neglected.  Ordinarily,  in  promising  marri- 
age, one  does  not  intend  to  contract  the  obligation  of  marrying,  except  in  so  far 
as  the  other  party  consents  by  a  counter-promise  to  the  same  obligation. 

4.  As  a  general  rule, the  promise  brings  with  it  merely  an  obligation  of  fidelity, 
that  is  light  in  itself.  Nevertheless,  from  the  intention  of  him  who  makes  the  pro- 
mise (of  which  we  must  often  judge  from  the  attendant  circumstances),  a  grave 


3. 


THE  NATURE  OF  BETROTHMENT  5 

a  sponsalitial  nature,  and  the  proper  effects  of  betrothment  must 
be  denied  to  such  a  promise. 

The  object  of  the  contract  is  the  future  marriage,  to  be  entered 
into  at  a  fitting  time,  that  is  to  say,  at  a  time  expressly  determined 
in  accordance  with  the  wishes  of  the  parties,  or  at  a  time  to  be 
reckoned  according  to  the  circumstances  of  the  case  and  local 
customs  (*). 

In  consequence  of  the  nature  of  the  object  with  which  the  con- 
tract is  concerned,  the  contracting  parties  must  be  a  man  and  a 
woman,  and  indeed  a  determinate  man  and  a  determinate  wo- 
man (*). 

Different  kinds.  Betrothment  is  :  —   1.   &\t\\G.T  solemn  ot  clan'     Different 
destine.  It  is  solemn,  when  celebrated  in  the  form  constituted  by         * 
public  authority  ;  if  otherwise,  it  is  clandestine.  Thus  betrothment 
is  clandestine  not  only  when  contracted  privately  and  secretly, 
but  also  when  it  takes  place  in  public,  but  without  the  prescribed 
formalities. 

2.  Absolute  or  conditional. 

3.  Confirmed  or  simple,  according  as  it  is  or  is  not  strengthened 
by  the  giving  of  a  pledge,  b}^  oath,  or  by  other  stipulations  of  a 
penal  nature,  to  be  enforced  against  those  who  draw  back  from 
the  agreement. 

Expediency  demands  that  betrothment  should  precede  marri-  Expediency. 
age,   though  no  obligation  arising  from  the  nature   of  things   or 
from  any  ecclesiastical  precept,  makes  it  necessary  that  it  should 

obligation  of  justice   may  arise.  Cf.    Mgr.  Waffelaert,  o.  c,  I,  n.  534 ;  Col- 
lat.  Brug.,  t.  II,  p.  130  ss.  ;  see  below  n.,  18,  in  note. 

1.  With  regard  to  the  proper  interval  between  betrothment  and  marriage, 
according  to  the  Roman  law,  cf.  Sehling,  UnterscJieidung,  p.  21-22  ;  Roche, 
o.  c,  p.  8  s.  ;  Lafourcade,  o.  c,  p.  74  ;  for  the  German  custom,  ibid.  p.  40. 

2.  Wernz,  o.  c,  IV,  n.  98,  remarks:*  A  promise,  even  with  a  counter-promise 
duly  accepted, of  marrying  one  of  three  sisters  at  the  choice  of  the  man,  does  not 
induce  any  sponsalitial  obligation, although  another  promissory  contract  certainly 
does  arise...  ;  in  like  manner  there  is  no  betrothment  where  a  man  merely  pro- 
mises a  girl  that  he  will  not  marry  anyone  else,  unless  it  is  clear  from  the 
circumstances  that  the  party  giving  the  promise,  notwithstanding  his  nega- 
tive and  conditional  way  of  speaking,  had  a  positive  and  absolute  intention  of 
marrying  this  particular  girl  and  no  other  ».  Under  the  new  discipline  of  the 
Decree  Ne  Tetnere  (cf.  n.  6.)  this  observation  finds  no  place,  since  betrothment, 
under  the  Decree,  cannot  be  understood  to  have  taken  place  except  between  two 
determinate  persons. 


6  THE  NATURE   OF  BETROTHMENT 

do  SO.  Betrothment  serves  as  a  barrier  against  ill-omened  haste  ; 
it  renders  the  position  ot  the  engaged  parties  more  secure  ;  and  it 
affords  a  better  opportunity  for  bringing  to  light  any  impediments 
or  incompatibility  of  disposition  that  may  exist  (*).  It  was  in  use 
among  the  Jews  (*),  the  Romans  ('),  the  Germans  (*),  and  the  Chris- 
tians of  the  primitive  Church  C').  On  the  other  hand  in  many 
modern  codes,  as  in  the  Code  Napoleon,  and  many  others  (*), 
betrothment  is  not  recognised,  and  is  without  any  binding  force, 
though,  in  certain  cases,  it  may  afford  ground  for  an  action  for 
damages  (below,  n.  17).  Cf.  Lafourcade,  o.  c,  p.  199  ss.,  where 
he  shows  that,  under  the  code  Napoleon,  matrimonial  promises 
are  null  in  law  with  the  nullity  «  d^ or dre  public  »,  as  being  opposed 
to  freedom  of  marriage.  Cf.  also  Escard,  1.  c,  p.  888  ss.  C). 

Article  2.  The  constituent  Element  of  Betrothment, 
or  the  Consent. 

5. 

Characteris-      The  constituent  element  of  betrothment,  as  we  gather  from  the 

spo^alttial  very  idea  of  the  contract,  is  mutual  consent  to  a  future  marriage. 
consent.  Jn  the  sponsalitial  contract,  as  in  every  other,  this  consent  ought 
to  be  internal,  free,  outwardly  expressed,  absolute,  simultaneous  and 
legitimate.  Now,  in  accordance  with  the  nature  of  the  object 
towards  which  it  is  directed,  the  sponsalitial  contract  ought  to  be 
in  a  special  way,  like  the  contract  of  marriage  itself,  a  matter  of 
individual  and  personal  consent,  since  it  promises  that  which  is 
within  the  disposal  of  the  contracting  parties  alone.  We  shall 
speak  of  these  general  characteristics  of  consent  when  we  come  to 


1.  Cf.  Rousseau,  Revue  desSciences  Ecclesiastiques  etla  Science  Catholique,  II, p. 
jj6  s.  Cf.  also  Instructions  du  Virariat  de  Rome,  I.  c,  p.  596,  where  the  parish 
priests  are  admonished  to  have  the  betrothals  celebrated. 

2.  The  betrothal,  in  which  the  parents  promised  to  give  the  girl  in  marriage 
to  the  man,  was  called  Thenain  or  Schidduchin. 

3.L.3,Dig.,XXm,i. 

4.  Cf.  PUTON,  O.  C,  p.  65  S. 

5.  Wernz,  o.  c,  IV,  n.  88.  In  some  places  betrothment  was  even  obligatory. 
Cf.  Colin,  o.  c,  p.  130. 

6.  This  is  the  case  in  Italy,  Holland,  Spain,  and  Portugal  ;  it  is  otherwise  in 
England  and  Germany. 

7.  The  author  there  explains  the  various  methods  of  betrothal  at  present  in 
vogue  in  certain  countries,  and  expresses  the  wish  that  this  contract  may  again 
find  a  place  in  the  civil  law. 


THE  NATURE   OF  BETROTHMENT  7 

the  question  of  matrimonial  consent,  and  what  we  say  there  may 
be  applied  here.  For  the  present,  it  is  sufficient  to  remark  that,  for 
the /flZ£{/M/«^ss  of  the  consent,  it  is  requisite  that  it  be  given  by 
those  capable  of  the  sponsalitial  contract,  and  according  to  the 
form  prescribed  for  its  validity.  In  determining  the  capability  of 
the  parties  and  the  form  of  the  contract,  we  must  attend  not  only 
to  the  requirements  of  the  natural  law,  but  also  to  those  of  the 
positive  law,  as  laid  down  by  that  authority  to  which  the  sponsali- 
tial contract  is  subject. We  shall  show  below  that,  for  the  betroth- 
ment  of  Christians,  this  authority  resides  in  the  Church,  and  that 
for  non-christians,  it  lies  with  the  head  of  the  State. 

What  concerns  the  capability  of  the  contracting  parties,  will  be 
explained  m  chapter  III,  under  the  head  of  impediments  to 
betrothment.  At  present  it  only  remains  to  describe  briefly  the 
formalities  of  consent. 

Formalities  of  consent. 

6. 
I.  As  far  as  the  natural  law  is  concerned,  no  particular  formality  Formalitus  : 

or  solemnity  is  required.  In  whatever  way  the  consent  is  express-  inthe 
ed,  it  is  valid,  provided  it  be  given  in  accordance  with  the  condi-  natural  law  ; 
tions  enumerated  above.  Thus  silence  itself,  in  certain  circumstan- 
ces, may  be  enough  for  a  sufficiently  certain  presumption  of  con- 
sent (').  In  like  manner  the  copula  (sexual  intercourse)  may  easily 
imply  sponsalitial  consent:  in  foroexiertto  it  is  presumed  to  do  so, 
not  indeed  indiscriminately  and  taken  by  itself,  but  when  effected 
under  certain  circumstances  ;  of  such  a  kind  is  the  copula  following 
on  a  promise  or  proposal  of  marriage  made  to  a  woman  who  is 
virtuous  and  a  virgin  ;  for,  it  is  considered,  as  Santi  reasons  (o. 
c,  1.  IV,  tit.  I,  n.  27),  that  she  would  not  have  yielded  herself  to 


I.  In  this  sense  decrees  cap.  unic,  in  VIo,IV,2  :  «Moreover  those  betrothments, 
which  parents  commonly  make  on  behalf  of  their  children,  whether  of  a  marri- 
ageable age  or  not,bind  the  children  themselves, if  they  have  given  their  consent 
thereto  expressly  or  tacitly,  as  being  present  without  protesting ;  and  the  con- 
tract gives  rise  to  the  impediment  of  public  decency.  The  same  holds  good  if  the 
children  were  absent  at  the  time  of  the  betrothal,  and  even  ignorant  ot  it,  but 
afterwards,  when  it  came  to  their  knowledge,  tacitly  or  expressly  ratified  it. 
Without  this  express  or  tacit  consent,  children  arc  not  bound  by  a  betrothment 
made  by  their  parents  on  their  behalf,  and  no  impediment  of  public  decency 
arises  in  consequence  of  it  ».  Cf.  Santi,  on  this  passage,  n.  14  and  24  ;  Anal. 
eccUs.,  1901,  p.  45  s. 


8  THE  NATURE  OF  BETROTHMENT 

the  man  except  on  the  understanding  that  the  marriage,  to  which 
she  trusted  for  the  safeguarding  of  her  honour,  should  duly  take 
place  (*). 
in  the  II.  Turning  now  to  the  positive  law,  we  find  that   until  quite 

o/theChurdi:  recently  the  Church  had  prescribed  no  formality  or  solemnity  as 
necessary  for  the  validity  of  betrothment  among  the  faithful  (*),  so 
that  any  betrothment,  however  clandestine  it  might  be,  was  per- 
fectly valid  in  the  eyes  of  the  Church. 

before  Easter  Under  this  discipline  serious  inconveniences  existed  ('),  and 
'  many  bishops  in  the  past  had  endeavoured  to  obtain  from  the 
Holy  See  some  modification  of  the  law,  but  without  success;  their 
petitions  did  not  find  favour,  and  those  diocesan  decrees,  which 
had  presumed  to  prescribe  a  solemn  form  for  the  validity  of 
betrothment,  were  severely  reprobated  (*).  The  first  modification 

1.  With  regard  to  this  presumption,  note  :  a)  that  we  say  «  w  foro  externa  >, 

since  in  this  alone  the  presumption  holds  good.  In  foro  interna  the  validity  of  the 
betrothment  depends  on  the  intention  of  the  woman  when  admitting  the  copula. 
Even  in  foro  externa  this  presumption  is  not  *  juris  etdejure*,  that  is  to  say,  it  is 
not  a  necessary  presumption,  but  falls  to  the  ground  as  often  as  it  can  be  estab- 
lished that  there  was  a  contrary  intention  on  the  part  of  the  woman,  b)  For  this 
presumption  in  foro  externa  both  the  elements,  of  which  we  have  spoken  above, 
viz.,  the  virtuousness  of  the  woman,  and  the  previous  promise  of  marriage,  clear 
and  certain,  on  the  part  of  the  man,  are  required.  For  the  proof  of  this  promise, 
marks  of  love  given  by  the  man  do  not  suffice.  Hence  it  happens,  as  Santi 
remarks  (1.  c),  that  «in  nearly  all  the  causes  brought  before  the  S. Congregation 
of  the  Council  in  our  days,  actions  concerning  the  validity  of  betrothment,  have 
failed,  though  the  copula  curnalis  was  there,  and  had  been  preceded  by  expres- 
sions of  love  and  frequent  familiar  intercourse  ». 

2.  In  these  countries  betrothment  of  non-christians  is  subject  only  to  the 
requirements  of  the  natural  law,  since,  as  we  have  remarked,  the  civil  power  has 
decreed  nothing  concerning  them. 

3.  «  Docuit  enim  experientia  satis  quae  secum  pcricula  ferant  ejusmodi  spon- 
salia  :  primum  quidem  incitamenta  peccandi,  causamque  cur  inexpertae  puellae 
decipiantur  ;  postea  dissidia  ac  lites  inextricablies  ».  Cf.  Dccretum  Ne  Temere, 
given  at  the  end  ot  this  volume,  also  Collat.  Brug.,  t.  XIII,  p.  53  s. 

4.  Feye,  Dfi/w^.,  n.  538;  Wernz,  o.  c,  IV,  n.  39  and  99  ;  De  Becker,  De 
Matrim.,  2-3  ;  Gasparri,  o.  c,  t.  I,  n.  24  &  25  ;  A^.  K.  th.,  t.  XXV.  p.  92  ss., 
and  especially  Can.Contemp.,  i8g8,  p.  489  ss.  and  1905,  p.579,  where  the  case  of  17 
June  1905  is  given,  in  which  the  S.  C.  C.  replies  :  Dilata.  Moreover,  a  proposal 
decreeing  «  eos  omnes,  qui  in  posterum  sine  testium  saltem  trium  praesentia 
matrimonium  vel  sponsalia  contrahere  attentaverint,  ad  sic  contrahendum  inhabi- 
les  fore,  et  contractus  hujusmodi  ab  eis  fieri  attentatos  irritos  esse  et  nullos  », 
was  rejected  by  the  Council  of  Trent.  Theiner,  o.  c,  II,  p.  339. 


THE  NATURE  OF  BETROTHMENT  9 

of  this  law  was  granted  in  the  case  of  Spain.  On  31  January  1880, 
the  Holy  See  declared  that  betrothals  contracted  there  were  inva- 
lid absque publica  scriptura,  i.  e.,  without  the  presence  of  a  notary, 
and  that,  moreover,  the  absence  of  this  formality  could  not  be 
made  good  «  by  an  instrument  drawn  up  in  the  (episcopal)  court, 
granting  a  dispensation  from  any  existing  impediment  ».  This 
modification  was  introduced  out  of  regard  for  the  custom  that 
existed  in  Spain,  and  required  the  said  formality,  from  the  time  of 
the  Pragmatic  Sanction  promulgated  in  the  year  1803  ('). 

More  recently,  i  January  1900,  Leo  XIII,  assenting  to  the  peti- 
tion of  the  Fathers  of  the  Council  of  Latin  America  presented 
in  1899  (*),  extended  to  Latin  America  the  discipline  that  prevail- 
ed in  Spain. 

Finally  a  new  order  of  things  was  introduced  by  the  famous  after  Easter 
decree  Ne  Temere,  published  by  the  S.  C.  C,  2  August  1907  (*), 
and  coming  into  force  at  the  following  Easter  1908. 

It  is  there  laid  down  that  :  <  Only  those  (betrothments)  are  con- 
sidered valid  and  produce  canonical  effects  which  have  been  contracted 
in  writing  signed  by  both  the  parties  and  by  either  the  parish-priest  or 
the  Ordinary  of  the  place,  or  at  least  by  two  witnesses. 

In  case  one  or  both  the  parties  be  unable  to  write,  this  fact  is  to  be 
noted  in  the  document  and  another  witness  is  to  be  added  who  will  sign 
the  writing  as  above,  with  the  parish-priest  or  the  Ordinary  of  the  place 
or  the  two  witnesses.  » 


I.  Cf.  Gasparri,  o.  c  ,  n.  26  ;  N.  R.  tli.,  t.  XXIV,  p.  134  ss.,  where  is  given  the 
Decree  of  the  S.  C.  C,  of  April  1891,  to  the  effect  that  the  declaration  of  1880 
was  still  in  force,  notwithstanding  the  change  in  the  civil  code  of  Spain. 

3.  Cf.  Postulata  Patrum  CoftcUii  Plenarii  Amtricae  Latinae,  ad  V  :  «  that  your 
Holiness  deign  to  extend  to  all  countries  of  Latin  America  the  declaration  of  the 
Sacred  Congregation  of  the  Council,  published  for  Spain  on  31  Jan.  1880....  i.  e. 
that  betrothals  contracted  in  our  countries  absque  publica  scriptura  be  invalid, 
and  that  no  matrimonial  information,  nor  any  document  drawn  up  in  the  dioce- 
san court,  or  elsewhere,  granting  a  dispensation  from  any  existing  impediment, 
whence  it  may  be  inferred  that  a  promise  of  marriage  was  seriously  made,  be 
competent  to  supply  for  the  absence  of  such  publica  scriptura  ».  To  this  the 
5.  C.  ncgotiis  eccles.  extraord.  praeposita  replied  :«  arf  V.,  pro  gratia  in perpe- 
tuum  ».  Cf.  Acta  Sanctae  Scdis,  XXVII,  p.  553  ss.  ;  Acta  et  Dccreta  Coiicilii  Ple- 
narii Americae  Latinae,  n.  592,  cum  nota. 

3.  The  text  of  the  Decree  will  be  found  at  the  end  of  this  work. For  the  general 
economy  of  the  same,  see  below,  where  we  speak  of  the  formalities  of  marriage. 


10  THE   NATURE  OF  BETROTHMENT 

7.  . 

the  Decree       A  brief  commentary  will  make  clear  the  effect  of  this  clause  : 

requtresfor       ^'   ^  formality,  which  we  shall  presently  describe,   has  been 

thevalidity of  [ntToductd,  and  the  observance  of  it  has  been  made   necessary 
bettothment, 

for  the  very  validity  of  the  betrothment. 

Everyone  is  agreed  that  betrothments  contracted  without  these 
formalities  are  null  in  Vlxq  forum  externum,  2ind  produce  no  canonical 
effect  properly  so  called  ;  that  is  to  say,  they  are  not  recognised  by 
the  Church,  and  give  rise  to  no  impediment  of  public  decency,  and 
to  no  obligation  to  marry  that  can  be  invoked  in  the  forum  exter- 
num. There  is  a  question,  however,  whether  betrothment  without 
the  prescribed  solemnity  is  invalid  only  in  the  forum  externum,  or 
whether  it  is  altogether  worthless  and  without  effect,  even  in  for o 
conscieniiae, so  as  to  be  as  if  it  were  simply  non-existent  (').  The  for- 
mer opinion  seems  more  conformable  to  the  tenor  of  the  Decree  (*) 
though  the  latter  is  preferred  by  the  majority  of  authors  ('), 
and  it  is  said  that  it  will  receive  the  confirmation  of  the  Holy 
See. Until  the  controversy  is  settled,  the  obligation  in  conscience  is 
theoretically  doubtful,  and  may  be  regarded  as  practically  null  (*). 

1.  Incidentally  a  variety  of  obligations  may  arise  from  such  invalid  betroth- 
ments :  e.  g.,  the  reparation  of  injury  caused  by  deceit  or  sexual  intercourse 
extorted  under  the  pretext  of  such  a  promise.  See  below,  n.  i8,  in  note. 

2.  Cf.  the  Author's  commentary  (Bruges,  1908),  p,  12  ss.  ;  Van  den  Acker, 
o.  c,  p.  3,  concedes  the  same. 

3.  Thus  R.  P.  Vermeersch,  Ne  temere,  n.  35  ;  Card.  Gennari,  o.  c,  p.  19  s.  ; 
OjETTi,  In  jus  pianum,  n.  49  ;  Db  Becker,  Legislatio  Nova,  p.  20  ;  Besson,  in 
N.  R.  th.,  1907,  p.  613  ss  ;  Choupin,  o.  c,  n.  8  ;  Hizette,  o.  c.  p.,  18  ;  Alberti, 
o.  c,  p.  8  ;  Domaica,  o.  c,  p.  31  ;  Ned.  Kath.  SUmmen,  1907,  p.  330  ;  Arendt, 
o.  c  ,  p.  165  ss.  ;  Wouters,  o.  c,  p.  29  s.  ;  Standaert,  CoUat.  Gandav.,  1909, 
p.  304  s  ;  Van  den  Acker,  1.  c. ;  de  Arquer,  o.  c,  n.  10  and  28;  The  Month,igo8, 
I>  P-  635  ;  Arribas,  o.  c,  p.  30  s. ;  Trenta,  o.  c,  p.  20  s.  ;  Pezzani,  o.  c,  p.  45  ss.; 
Barrett,  o.  c,  p.  20  s.  ;  Creagh,  o.  c,  p.  25  ;  Devine,  o.  c,  p.  284  ;  Cronin, 
o.  c,  p.  299  ss.  ;  VoGT,  o.  c,  p.  tg  ;  Knecht,  o.  c,  p.  73  s.,  where  the  reply  of 
the  S.  C.  C.  26  Feb.  1908,  regarding  this,  is  quoted.  On  the  other  hand  the  vali- 
dity and  efficacy  of  such  betrothments  are  vindicated  by  Boudinhon,  Le  Mariage 
ei  les  Fianqailles,  n.  36,  and  Heiner,  A'^  Temere,  p.  49  s.  Noldin,  Decretum  dc 
Sponsalibus  et  Matr.,  n.  7,  and  after  him,  Karst,o.  c,  p.  19,  in  note,  acknowledge 
that  these  betrothals  have  efficacy  inforo  interno,  but  illogically  restrict  it  to 
the  obligation  of  mere  fidelity. 

4.  The  provisions  of  the  Decree  Ne  Temere  regard  betrothals  only, and  so  do  not 
seem  to  apply  to  a  non-sponsalitial  promise  of  marriage;  e.  g.,  to  a  promise  given 
by  one  party,  which  the  other  party  accepts  without  giving  a  counter-promise. 
In  our  opinion,  such  a  unilateral  promise  retains  its  natural  eificacy  (see  n.  3). 


THE   NATURE  OF  BETROTHMENT  II 

2.  The  formality  required  by  the  Decree  consists  in  this  :  —  that  that  the 
the  contract  he  in  writing,  and  that  it  he  signed  by  both  the  contracting  duly  signed, 
parties  and  either  by  the  parish  priest,  or  by  the  Ordinary  ('),  or  at  least  by 
two  witnesses ;  but  with  this  proviso,  that  in  case  the  contracting 
parties,  or  one  of  them,  be  unable  to  write,  another  witness  must 
be  added,  who  shall  sign  the  contract  in  the  place  of  them,  or  of 
the  one  of  them,  mention  of  the  inability  to  write  being  made  in 
the  document  (*). 

Moreover,  this  document  must  be  signed  on  the  same  occasion  by 
the  contracting  parties,  or  by  their  respective  proxy,  together 
with  the  parish  priest,  or  the  Ordinary,  or  the  two  witnesses.lt 
will  not  suffice  that  the  document  be  signed  by  one  party  in  the 
presence  of,  and  together  with  the  parish  priest  or  the  two  wit- 
nesses, and  then  be  sent  to  the  other  and  absent  party,  for  his 
signature  together  with  that  of  the  parish  priest  or  witnesses  ('). 
The  signatory  parties  must  both  be  present  at  the  same  time,  and 
they  must  sign  their  names  inthe  actual  presence  of  the  witnesses, 
present  at  the  same  iime,so  that  these  may  be  able  to  testify  that  the 
consent  of  each  of  the  betrothed  parties  was  given  in  writing  (*). 

It  is  also  required  for  the   validity  of  the  betrothment  that  the    and  dated. 
date  —  day,  month,  and  year  —  be  given  in  the  document  ('). 

The  Ordinary  or  parish  priest,  in  order  to  sign  as  the  qualified 


The  following  have  written  in  this  sense  :  Vermeersch,  o.  c,  n.  28  ;  Card. 
Gennari,  1.  c. ;  OjETTi,  o.  c,  n.  50;  Alberti,  1.  c. ;  Choupin,  o.  c.,n.6;  Hizette, 
1.  c.;  Arendt,  1.  c.  ;  WouTERs,  o.  c,  p.  30  s. ;  Van  den  Acker,  o.  c,  p.  11 ; 
Standaert,  1.  c.  ;  but  De  Becker  (1.  c.)  is  ot  the  contrary  opinion. 

1.  We  shall  explain  below,  when  treating  of  the  formalities  of  marriage,  who 
come  under  the  terms  Ordinary  and  parish  priest.  It  is  not  necessary,  as  for 
marriage,  that  they  should  be  requested  and  invited  to  assist  at  the  betrothal. 

2.  Observe  that  it  is  sufficient  that  the  signatures  be  in  the  handwriting  of  the 
signatories.  The  rest  of  the  document  may  be  written  by  another  hand,  or  even 
printed  ;  but  the  employment  of  a  stamped  fac-simile  of  signature,  or  of  a 
typewriter  for  the  signature  would  invalidate  the  deed. 

3.  Decree  of  the  S.  C.  C,  27  July  1908  ad  i,  towards  the  end. 

4.  Nevertheless  if  one  of  the  contracting  parties  be  absent,  there  is  no  reason 
why  he  should  not  name  a  proxy  to  be  present  and  sign  the  contract  in  his  place, 
mention  being  made  of  the  fact  that  he  does  so  as  proxy.  See  below,  n.  70. 

5.  The  same  Decree,  2.  It  is  advisable  to  add  the  name  of  the  place,  but  this 
is  not  essential  :  this  may  serve  as  a  proof  that  the  parish  priest  of  the  place 
signed  the  document.  An  error  in  the  date,  even  involuntary,  would  render  the 
validity  at  least  doubtful. 


12  THE   NATURE   OF  BETROTHMENT 

witness  (*),  must  be  the  Ordinary  or  parish  priest  of  the  place, 
within  the  limits  of  which  the  contract  is  signed.  It  does  not  mat- 
ter, as  far  as  validity  or  even  strict  lawfulness  is  concerned, 
whether  the  Ordinary  or  parish  priest  be  that  of  the  contracting 
parties  or  not  (*).  They  cannot,  however,  depute  another  to  act 
„  for  them  ('). 

Extent  of  the  3.  The  discipline,  which  we  have  just  described,  extends  to  all 
betrothals  contracted  between  parties,  of  whom  one  at  least  is  a 
Catholic  of  the  Latin  rite  (*).  A  fuller  explanation  of  this  will  be 
given  below,  when  treating  of  the  formalities  of  marriage. 

The  provisions  of  the  Decree  affect  only  betrothments  c  exinde 
celebranda  >,  that  is  to  say,  such  as  are  subsequent  to  Easter 
Sunday  (19  April)  1908  ;  and  they  have  no  retrospective  force  : 
hence  betrothments  anterior  to  that  date  are  not  subject  to  the 
exposed  regulations. 

Betrothments     Corollary.  For  betrothments  under  the  Decree  Ne  Temere,  there  is  no 

\L^lt^...2t  ^  need  to  take  into  consideration  the  enactment  of  the  Canon  law,  in  other  re- 
consequcnt  on  ' 

sexual  in-    spect  of  but  little  practical  importance,  regarding />r^s;^»i^ff  betrothment. 

^P^actkaUy^  According  to  §  I,  cap.  unic,  in  VI°,  IV,  2,  p)  and  c.  14,  X,  IV,  2,marriages 

obsolete,     invalidly  contracted  per  verba  depraesenii  by  impuberals  not  very  near  to 

the  age  of  puberty,  and  in  whom  precocity  did  not  supply  the  want  of  age, 

implied  sponsalia  defuturo,  and  consequently  the  impediment  of  public 

1.  Where  a  parish  priest  acts  as  an  ordinary  witness,  signing  together  with 
another  witness.it  is  indifferent  whether  he  be  the  parish  priest  of  the  place  or  not. 

2.  Decree  of  the  S.  C.  C.  28  March  igo8,  ad  7  ;  cf.  Collat.  Brug.,  t.  XIII, 
p.  470  s.,  where  it  is  said  that  the  parties  should  be  advised  to  go  to  their  own 
parish  priest,  and,  when  two  parishes  are  concerned,  to  the  parish  priest  of  the 
bride,  in  whose  parish  the  bethrothal  should  take  place. 

3.  The  same  Decree,  ad  6.  This  provision  is  conformable  to  the  office  in  question; 
for,  the  parish  priest  exercises  no  jurisdiction  here,  he  is  simply  an  authorised 
witness,  and  this  office  cannot  be  delegated,  unless  by  express  permission. 
Moreover,  the  absence  of  the  parish  priest  may  be  supplied  by  the  presence  or 
two  witnesses. 

4.  It  extends  also  to  betrothals  contracted  in  Spain  and  in  Latin  America  ;  and 
the  form  established  for  those  countries  by  special  provision  of  the  canon  law 
has  been  abrogated.  Cf.  Deer.  S.  C.  de  Sacr.,  12  March  1910,  ad  7. 

5.  «  Si  pubes  et  impubes,  vel  duo  impuberes,  non  proximi  pubertati,  et  in 
quibus  aetatem  malitia  non  supplebat,  per  verba  contraxerint  de  praesenti 
sponsalia  enim  ilia,  quae  juris  interpretatione  tantum  fuerunt  sponsalia  defuturo,... 
per  adventum  pubertatis  in  matrimonium  non  transeunt  de  praesenti...;  per 
dictum  tamen  contractum,  qui  valuit  ut  potuit,  non  sicuti  agebatur,  publicae 
honestatis  justitia  est  inducta  ». 


THE  NATURE  OF  BETROTHMENT  I3 

decency  within  the  first  degree,  provided  that  the  marriage  contract  was 
not  invalid  either  from  the  want  of  consent  ('),  or  on  the  ground  of 
clandestinity  («). 

In  Uke  manner  the  question  raised  above  (n.  6),  viz.,  how  far  betrothment 
exists  in  consequence  of  the  occurrence  of  sexual  intercourse  between  those 
of  a  marriageable  age,  is  no  longer  practical  as  far  as  betrothments  subject 
to  the  decree  Nc  Temere  are  concerned  ;  but  is  of  importance  only  in  the 
case  of  betrothments  that  are  not  subject  to  the  decree,  or  which  took  place 
before  Easter  1908. 

Scholion.  Various  solemnities  were  observed  in  the  Roman  law,  but  The  ancient 
were  not  regarded  as  essential.  It  was  usual  to  celebrate  the  betrothal  in 
the  forum  before  witnesses,  who  were  called  sponsor es.  At  a  later  date,  the 
omission  of  these  was  supplied  by  the  use  of  sponsal  tablets  or  registers. 
The  ring  was  given  together  with  money  to  ratify  the  contract,  and  also 
the  kiss.  Lafourcade,  o.  c,  p.  68  s.  and  85. 

In  the  ancient  German  law  certain  formalities  were  also  employed. 
These  are  described  by  Colin,  o.  c,  p.  85  ss. 

For  the  popular  practices  of  the  Middle  ages,  see  Colin,  o.  c,  p.  143  s. 
Lafourcade  (o.  c,  p.  184)  observes  that  the  use  of  a  written  document  was 
ordered  by  Louis  XIII,  of  France,  in  the  celebration  of  betrothals,  not  as  a 
ceremony,  but  for  purposes  of  proof.  The  present  day  practices  observed 
in  those  places  where  formal  betrothals  commonly  take  place,  will  be  found 
in  EscARD,  1.  c. 

Article  3.  The  Subject,  or  Contracting  Parties. 

For  betrothment,  the  contracting  parties  must  have  :  The 

1 .  The  use  o/r^«so», together  with  sufficient  discernment  to  know,   contracting 
at  least  in  a  general  way,  that  they  are  taking  upon  themselves 

the  obUgation  of  marrying  ;  without  this,  they  are  incapable  of 
consenting  to  a  future  marriage. 

2.  The  age  of  seven  years. 

3.  Ability  to  marry  at  some  future  time. 

Theirs/  requisite  is  wanting  in  lunatics  and  maniacs,  unless 
they  enter  into  the  contract  during  some  lucid  interval.  It  is  not 
necessarily  wanting  in  the  case  of  the  deaf  or  dumb,  nor,  consider- 
ing the  modern  method  of  instruction,  in  the  case  of  deaf-mutes, 
even  if  they  be  at  the  same  time  blind.  Cf.  cc.  23-25,  X,  IV,  i. 


I.  Cap.  unic,  in  VIo,  IV,  i. 

9.  Wernz,  o.  c,  IV,  n.  161,  note  (113). 


14  THE  NATURE  OF  BETROTHMENT 

With  regard  to  the  second  requisite,  children,  who  are  under  the 
age  of  seven  years,  but  in  whom  precocity  supphes  the  deficiency 
of  age,  may  have  sufficient  use  of  reason  to  be  capable  of  betroth- 
ing themselves,  as  far  as  the  natural  law  is  concerned  ;  but  they 
appear  to  be  incapacitated  by  the  ecclesiastical  law,  in  conse- 
quence of  the  legal  presumption  of  the  want  of  reason.  In  opposi- 
tion to  Santi  (o.  c,  L.  IV,  tit.  II,  n.  4),  we  are  of  opinion  that 
this  is  to  be  inferred  from  cc.  4,  5,  13,  X,  IV,  2,  and  from  the 
cap.  unic.  in  VP,  IV,  2  ('). 

The  third  requisite  will  be  explained  in  Chapter  III,  where  we 
shall  treat  of  the  impediments  of  betrothment. 

Betrothment  Note.  Those  below  the  age  of  puberty  are  not  in  consequence  of  that 
"■^/fcT^'o/'' rendered  incapable  of  betrothment,  either  by  the  natural  law,  since  it  is  a 
puberty,  question  of  a  promise  oi  future  marriage,  or  by  the  canon  law,  as  is  clear 
firom  the  whole  of  Book  IV  Decret.,  tit.  2,  and  from  VI  Decret.,  IV,  2. 
Nevertheless,  betrothment  before  the  age  of  puberty,  though  valid,  is  to  be 
carefully  discouraged,  and  persons  below  that  age  should  not  be  permitted 
to  contract  it.  Such  betrothments  are,  in  accordance  with  the  provisions 
of  the  canon  law,  rescindible,  as  we  shall  point  out  below,  in  n.  24. 

Article  4.  The  Adjuncts  of  Betrothment. 

A.  An  Oath. 
4i. 

The  effect  of      The  accession  of  an  oath  to  valid  betrothment  adds  to  the  obli- 

betrothment.  gation  of  justice  a  further  obligation  of  religion.  This  obligation 
continues  in  force  as  long  as  the  betrothment  itself,  and  ceases 
with  it.  An  oath  does  not  make  valid  (*)  a  betrothment  that  is 
otherwise  invalid,  as,  for  instance,  through  the  omission  of  the 
prescribed  form  ;  and  it  would  appear  that  the  oath  itself  is 
invalid,  when  employed  in  such  a  case  ('). 


1.  «  Si  infantes  ad  invicem  vel  unus  major  septennio  et  alter  minor  sponsalia 
contraxerint...  sponsalia  hujusmodi  quae  ab  initio  erant  nulla...  publicae  hones- 
tatis  justitiam  non  inducunt  ».  Cf.  also  in  the  Roman  law,  L.  14,  Dig  ,  XXIII, 
and  Ivo  Carnutensis,  Panormia,  VI,  c.  13  (Migne,  t.  CLXI,  c.  1346).  See  also 
Roche,  o.  c.,  p,  11  s. 

2.  Cf.  Lafourcade,  o,  c,  166 ;  Dignant,  De  Virtute  Religionis,  n.  256  s. 
Concerning  the  opinion  ascribed  to  Ivo  Carnutensis,  that  sponsalia  jurata  have 
the  force  of  marriage,  cf.  Esmein,  o.  c,  I,  p.  140  ss.  See  also  what  is  said  under 
n.  14,  note  2. 

3.  Cf.  Van  den  Acker,  o.  c,  p.  13  s.  Cf.  in  the  contrary  sense  Wouters,  o.  c, 
p.  3Z  ss. 


THE  NATURE  OF  BETROTHMENT 


15 


B.  A  condition. 

Leaving  the  fuller  explanation  of  this  matter  and  of  its  princi- 
ples to  n.  85  ss.,  the  following  will  suffice  for  the  present  : 

Betrothals  contracted  under  a  condition  that  possesses  a  dissolv- 
ing force,  are  valid  and  produce  their  proper  effects  ;  but  cease  to 
exist  as  soon  as  the  imposed  condition  has  been  realised. 

Betrothment  entered  into  under  a  suspensive  condition  defuiuro  : 
a)  impossible,  or  repugnant  to  the  substance  of  the  contract,  whether  in 
its  sponsalitial  or  matrimonial  aspect,  is  invalid,  if  such  a  condi- 
tion was  seriously  imposed  ;  b)  possible,  and  not  repugnant  to  the  sub- 
stance of  the  contract, then, e\ en  though  the  condition  be  of  an  immo- 
ral nature,  the  betrothment  is  suspended  until  the  condition  is  rea- 
lised; subsequently,unless  invalidated  by  a  provision  of  the  positive 
law,  the  contract  at  once  comes  into  force,  even,  it  would  seem,  if 
one  party  or  the  other  had  illicitly  revoked  consent  before  the 
realisation  of  the  condition  (*). 

As  long  as  the  contract  is  suspended,  the  impediment  of  public 
decency  also  remains  in  a  state  of  suspense  ;  thus  a  marriage  con- 
tracted by  the  man  with  the  sister  of  his  betrothed  before  the  ful- 
filment of  the  suspensive  condition,  would  be  valid  (*).  Neverthe- 
less, the  prohibition  of  marrying  another  person  in  the  meantime 
remains,  since  one  is  bound  to  await  the  fulfilment  of  the  condi- 
tion, excepting  only  the  case  where  that  condition  is  an  immoral 
one(*). 

C.  The  Copula. 


U. 

The  effect   of 

an  imposed 

condition : 

when  of  a 

dissolving 

force, 

when  of  a 

suspensive 

forct. 


44. 


Before  the  Council  of  Trent,  sexual  intercourse,following  on  betrothment  Intervention 

duly  contracted,  involved  actual  marriage  coram  foro  externo  by  a  presump-  ?/  ^^  copula 

IT*  -ii't  *'r  r       1     ^^       anctent 

tion  luns  et  de  jure,  1.  e.  a  presumption  that  did  not  admit  of  proof  to  the  law  involved 

contrary  f*).  apresumption 

^  of  marfxage. 


1.  Cf.  Wernz,  o.  c,  IV,  103  and  301 ;  Lehmkuhl,  Theol.  mor.,  ed.  9, 1898,  II,  n. 
661 ;  contra  De  Becker.  De  Matrim,  p.  79  s, 

2.  Cap.  unic,  in  VI°,  IV,  I. 

3.  When  the  nature  of  the  imposed  condition,  or  its  suspensive  or  invalidating 
force  is  doubtful,  the  presumption  must  be  in  favour  of  liberty,  i.  e.  of  nullity ; 
but,  on  the  other  hand,  where  marriage  is  concerned,  the  validity  of  the  act 
must  be  maintained. 

4.  Cf.  the  decree  of  Alexander  III,  IV  Deer.,  I,  c.  13  Veniens,  and  especially  the 
decree  of  Gregory  IX,  same  title,  c.  30  :  c  Is  qui  fidem  dedit  M.  mulieri  super 


l6  THE  NATURE   OF  BETROTHMENT 

In  Other  words,  sexual  intercourse  between  the  betrothed  was  regarded 
in  foro  externa  (*)  as  a  conjugal  act,  and  accordingly,  in  the  eyes  of  the 
Church,  involved  matrimonial  consent,  and  constituted  the  contract  of 
marriage.  This  was  so  much  the  case,  that  it  was  useless  to  oppose  to  this 
presumption  the  fact  that  all  thought  of  marriage  was  wanting,  and  that 
the  intercourse  had  been  merely  an  act  of  fornication,  or  even  tne  result  of 
violence  (*). 

matrimonio  contrahendo,  camali  copula  subsecuta,  si  in  facie  Ecelesiae  ducat 
aliam  et  cognoscat,  ad  primam  redire  tenetur  :  quia  licet  praesumptum  primum 
matrimonium  videatur,  contra  praesumptionem  tamen  hujusmodi  non  estprobatio 
admitUnda.  Ex  quo  sequitur  quod  nee  verum  nee  aliquod  censetur  matrimonium 
quod  de  facto  est  postmodum  subsecutum  ».  —  Leo  XIII,  in  his  Constitution  Con- 
sensus mutuus,  of  which  we  shall  speak  later,  bears  witness  to  the  same,  and  says 
that  the  Roman  Pontiffs  «  in  hac  juris  praesumptione  tantum  roboris  inesse 
voluerunt,  ut  iirmum  ipsa  statueret  sanciretque  jus,  nee  probationem  contrariam 
ullam  admitteret  »,  except,  of  course,  a  direct  and  quite  evident  proof. 

1.  In  foro  interna  this  presumption  gave  way  to  the  actual  truth,  and  in  con- 
science the  presumed  marriage  was  to  be  held  valid  or  invalid,  just  as  at  present, 
according  as  the  betrothed  had  had  carnal  intercourse  with  conjugal  intent,  or 
not.  This  opposition  between  the  Jorum  internum  and  the  forum  externum  natu- 
rally gave  rise  to  conilicting  claims,  and  resulted  in  a  state  of  affairs  in  which 
a  man  was  compelled,  under  pain  of  excommunication,  to  live  with  a  woman 
who  was  not  his  actual  wife,  and  to  leave  her  to  whom  he  was  united  by  a  bond 
that  was  valid  in  conscience. 

2.  EsMEiN  (o.  c,  1. 1,  p.  142  ss.)  is  of  opinion,  that  the  discipline,  in  virtue  of 
which  betrothment,followed  by  sexual  intercourse,  passed  by  law  into  marriage, 
was  introduced  under  the  influence  of  the  Copulatheoria,  which  formerly  found 
favour  with  many  doctors,  inasmuch  as,  according  to  the  common  formula,  con- 
jugium  desponsatione  initiatur  et  commixtionc  perficitur,  that  is  to  say,  the  copula, 
taken  by  itself,  and  without  any  reference  to  the  intention  with  which  it  was 
effected,  added  to  the  betrothal  (matrimonium  initiatum)  an  element  that  com- 
pleted the  marriage  ;  in  this  way  it  would  be  understood  that  the  absence  of 
conjugal  intent  did  not  invalidate  the  marriage.  Cf.  Watkins,  o.  c,  p.  133  s. 

But  leaving  its  fuller  treatment  to  a  later  page,  and  setting  aside  for  the  pre- 
sent the  intricate  question  of  copulatheoria  as  far  as  it  was  accepted  in  law,  the 
interpretation  of  the  discipline  given  in  the  text,  seems  more  fitting  and  obvi- 
ous, that  is  to  say,  marriage,  in  the  case  indicated,  was  supposed  to  be  consti- 
tuted not  by  the  copula  as  such,  but  inasmuch  as  it  was  presumed  to  manifest 
conjugal  intent  and  consent. 

Lafourcade  (o.c,  p. 170  ss.)  suggests  that  the  said  presumption  was  enjoined 
in  order  to  meet  the  fraudulent  conduct  of  those  who,  after  being  united  in  clan- 
destine marriage  and  living  together,  as  man  and  wife,  wished  to  dissolve  the 
union  on  the  plea  that  they  had  given,  not  matrimonial,  but  merely  sponsalitial 
consent. 

Presumptions  of  this   kind  were  not    unknown  even  in  the  Roman  law, 


THE  NATURE  OF  BETROTHMBNT  l7 

From  the  time  of  the  Council  of  Trent,  which  invalidated  clandestine 
marriages,  and  made  it  a  condition  of  validity  that  consent  should  be 
given  in  the  presence  of  the  parish  priest  and  two  witnesses,  these  pre- 
sumed marriages  (*)  have  been  thereby  abrogated  (*)  for  all  those  places  in 


many  of  the  provisions  of  which  the  Church  has  appropriated.  Thus  Sehling, 
Unterscheidung ,  p.  14-16,  shows  how,  in  the  Roman  law,  from  the  taking  of  a 
woman  into  the  home  of  her  husband,  matrimonial  consent  and  actual  marriage 
were  presumed.  Moreover,  in  Esmein,  (  o.  c,  t.  I,  p.  103)  Novella  74  is  quoted, 
according  to  which  betrothment  passed  by  carnal  intercourse  into  marriage. 
Cf.  also  Lafourcade,  o.  c,  p.  73  and  96. 

It  is  interesting  also  to  note  that  a  similar  discipline  still  exists  in  the  civil  law 
of  Sweden  and  Scotland,  as  Lafourcade  relates  (o.  c,  p.  220  and  237)  :  «  Lors- 
que  les  fian9ailles  ont  et6  suivies  de  cohabitation,  la  copula  carnalis  produit  des 
effets  analogues  a  ceuxqu'elle  engendrait  dans  I'ancienne  th6orie  des  matrimonia 
praesumpta.  Elle  forme  un  manage  imparfait,  irr^gulier,  qui  ne  pent  etre  rompu 
que  s'il  existe  une  cause  legitime  de  divorce.  Le  mariage  doit  etre  c61ebre ;  si  le 
fianc^  s'y  refuse,  sa  fiancee  est  declaree  son  Spouse  legitime  et  jouit  sur  les  biens 
de  son  mari  de  tous  les  droits  que  lui  assure  la  loi  ».  Cf.  Nystrom,  o.  c,  p.  245  s. 

1.  For  the  meaning  of  presumed  marriage,  see  below  n.  93. 

2.  Leo  XIII  clearly  teaches  in  his  Constitution,  that  the  Council  of  Trent  abo- 
lished matrimonia  praesumpta  for  those  places  in  which  the  decree  Tametsi  had 
force  :  «  Deinde  vero  matrimonia  clandestina...  quum  Concilium  Tridentinum 
irrita  infectaque  esse  jussisset,  jusillud  priscum,  ut  erat  necesse,  valere  desiit 
ubicunque  promulgata  est  vel  moribus  usuque  recepta  Tridentina  lex  ». 

And,  in  truth,  the  copula  taken  by  itself,  though  following  on  betrothment, 
does  not  necessarily  signify  matrimonial  intent  and  consent,  since  it  may  take 
place  with  quite  a  different  intention,  but  affords  a  mere  presumption  of  con- 
sent, and  so,  even  if  the  parish  priest  and  the  two  witnesses  were  present,  it 
would  not  imply  consent  given  in  the  form  required  by  the  Council  of  Trent. 
We  must  accordingly  reject  the  fantastic  hypothesis  of  Sanchez,  to  the  effect 
that  the  copula  following  upon  betrothment  contracted  in  facie  Ecclesiae,  and 
taking  place  in  the  presence  of  the  parish  priest  and  witnesses,  constituted  a  valid 
matrimonium  praesumptum  even  under  the  Tridentine  discipline  :  «  Quando,  tarn 
sponsalia  de  futuro  quam  copula  sunt  coram  eodem  parocho  et  testibus,dicendum 
est  jus  antiquum  manere  illaesum,  atque  ita  transire  in  matrimonium  verum  qui- 
dem,  si  animo  conjugali,  praesumptum  vero,  quando  fornicario  haberetur  copula 
adeo  ut  probata  copula  et  sponsalibus  praesumeret  Ecclesia  matrimonium  coge- 
retque  ad  illud,  sicut  ante  Tridentinum  cogebat*.  O.  c,  III,  Disp.  40,  n.7,  Cf.  also 
Esmein,  o.  c,  t.  II,  p.  210  s. 

Whether  other  kinds  of  matrimonium  praesumptum  were  abolished  by  the  Coun- 
cil of  Trent  for  places  subject  to  it,  cf.  below, n.  93,  where  we  treat  of  matrimonia 
praesumpta. 


l8  THE  NATURE  OF  BETROTHMENT 

which  the  chapter  Tametsi  is  in  force,  the  ancient  law  of  the  Decretals 
being  preserved  for  places  not  subject  to  the  Tridentine  decree. 
but  no  long-     Until  a  very  recent  date,  therefore,   a  legal  presumption,  juris  et  de 
er  under  the  ji^jg^  of  marriage,  arising  from  the  copula  of  betrothed  parties,  still  remain- 
cipHne.       ed  in  force  for  those  places  and,  for  those  places  only,  in  which  mar- 
riage could  be   validly  contracted  without  the  Tridentine  form  (*). 

But,  on  the  15th  of  February  1892,  Leo  XIII  by  the  Constitution  Con- 
sensus mutuus,  (*)  abolished  that  ancient  law,  and  ordained  that  it  should 
be  held  as  abolished  and  abrogated,  just  as  if  it  had  never  been  in  existence, 
decreeing  that  «  henceforth  in  those  places  in  which  clandestine  marriages 
are  regarded  as  valid,aX\  ecclesiastical  judges  who  have  cognizance  of  such 
matrimonial  causes  should  forthwith  cease  to  treat  the  intervention  of  car- 
nal intercourse  between  betrothed  persons  as  a  presumption  (juris  et  de 
jure)  of  the  marriage  contract,  and  that  they  should  not  acknowledge  or 
declare  such  union  to  be  lawful  marriage  »  ('). 

Nowhere,  therefore,  under  the  existing  discipline  is  marriage  brought 
into  bemg,  by  a  legal  presumption  juris  et  de  jure  due  to  the  copula  follow- 


I,  Leo  XIII  confirms  this  in  the  above  mentioned  Constitution,  where  he  says: 
«  Quibus  autem  ilia  (lex  Tridentina)  locis  non  viget,  in  iis  semper  Apostolicae 
Sedis  judicium  fuit,  canones  (Decretalium)...  rates  atque  firmos  permansisse  ». 

3.  Collection  S.  C.  de  P.  F.,  n.  1279.  Concerning  the  interpretation  of  this  Con- 
stitution Wernz,  (o.  c,  n.  104,  note  114,  of.  n.  29,  note  12)  warns  us  that  the 
following  points  must  be  borne  in  mind  :  i.  «  Cavendum  est  ne  novum  jus  a 
Leone  XIII  constitutum  etiam  extendatur  ad  alias  praesumptiones  juris,  (sive 
simplicis  sive)  juris  et  de  jure,  in  causis  matrimonialibus  ».  2.  Although  the 
Constitution  Consensus  mutuus  has  not  an  express  and  formal  clause  giving  it  a 
retrospective  force,  nevertheless  it  appears  that  it  is  to  be  applied  to  all  causes 
brought  before  an  ecclesiastical  court  after  15  Feb.  1892.  For  the  Roman  Pontiff 
decrees  that  all  contrary  sanctions  of  the  law  whatsoever  are  to  be  held  as 
radically  abrogated  and  obsolete,  «  ac  si  nunquam  prodiissent  ». 

3.  The  Sovereign  Pontiff  was  moved  to  this,  both  by  the  many  inconveniences 
that  arose  from  the  conflict  between  the  forum  externum  and  the/or«m  internum, 
and  by  the  following  consideration,  as  given  in  the  Constitution  itself  :  «  plures 
Episcopi  ex  iis  regionibus,  in  quibus  matrimonia  clandestina  contra  fas  quidem 
inita,  sed  tamen  valida  judicantur,  baud  ita  primum  rogati  quid  populus  ea  de 
re  sentire  videretur,  plane  retulerunt  canonicam  de  conjugiis  praesumptis  disci- 
plinam  passim  exolcvisse  dcsuetudine  atque  oblivione  deletam,  propterea  vix 
aut  ne  vix  quidem  contingere  ut  copula  inter  sponsos  affectu  maritali  et  non 
fornicario  habeatur :  eamque  non  matrimonii  legitimi  usum  sed  fornicationis 
peccatum  communi  hominum  opinione  existimari ;  imo  vix  persuader!  populo 
posse,  sponsalia  de  futuro  per  conjunctionem  carnalem  in  matrimoniura 
transire  », 


THE  NATURE  OF  BETROTHMENT  I9 

ing  on  belrothment,  whether  the  marriage  be  subject  to  the  Decree  Nc 
temeu  ('),  or  exempt  from  it. 

The  only  difference  is  that  a  marriage  subject  to  the  decree  cannot  be 
contracted  per  copulam,  (so  that  the  «  praesumptio  juris  >  alone  is  no  longer 
applicable),  while  a  marriage  exempt  from  the  decree  may  be  valid  owing 
to  the  copula,  but  only  where  such  carnal  intercourse  took  place  with  con- 
jugal intent. 

D.  Penalties,  pledges,  presents. 

IS. 

Sometimes  a  penalty  is  agreed  upon  against  the  party  that  draws  back   When  it  is 

from  the  betrothment.   Sometimes  also  a  deposit  either  of  real  or  personal  necessary  to 

^  ^  return 

property  is  mutually  given  as  a  sign  of  the  betrothment  and  as  a  pledge  of 

faithfully  keeping  the  promise.  Frequently  presents  are  given,  especially 

by  the  prospective  bridegroom,  as  a  mark  of  love  and  good  will.  Hence  : 

1.  Presents,  if  they  are  of  little  relative  value,  are  regarded  sls  given  betrothal pre- 
absolutely,  and  there  is  no  necessit)'  to  return  them  under  any  hypothesis,       sents, 
though  as  a  rule  they  are  given  back  on  the  dissolution  of  the  betrothment. 

If  they  are  of  a  more  costly  nature,  they  are  considered  as  given  under  an 
implied  condition  of  m.arrj'ing,  and  after  the  marriage  they  are  kept  by  the 
recipient.  If  the  marriage  does  not  take  place, they  must  be  returned  by  the 
respective  parties,  but  when  one  party  has  unjustly  drawn  back  from  the 
contract,  they  may  sometimes  be  retained  by  the  injured  party  by  way  of 
compensation. 

2.  Pledges  or  deposits  (^)  may  be  demanded  back  after  the  marriage  has     pledges, 
taken  place.  If  the  betrothment  has  been  broken,  such  pledges  or  deposits 

must  be  returned  by  the  party  unjustly  defaulting,  and  they  may  be  retained 
by  the  other  party.  In  case  of  just  cause  for  withdrawing  from  the  contract 
they  must  be  returned  on  both  sides.  .. 

3.  With  r^ard  to  penalties  a  difference  of  opinion  exists.  Undoubtedly   Whether   a 

a  stipulated  penalty  does  not  hold  good  against  one  who  justly  withdraws  stipulated  pe- 
.  ,  ,--.  -  nalty  binds 

from  the  contract,  but  it  is  doubtful  if  it  has  any  binding  force  against  one      one  who 

who  withdraws  unjustly.  withdraws 

The  negative  opinion  is  favoured  in  no  obscure  manner  by  c.  29,X,IV,i;    or  unjustly. 


1.  The  provisions  of  the  Decree  Ne  temere,  of  which  we  have  already  spoken, 
have  replaced  those  of  the  Council  of  Trent,  and  will  be  more  fully  treated  later. 

2.  Foremost  among  the  pledges  (arrhae)  must  be  reckoned  the  betrothal  or 
engagement  ring,  the  giving  of  which  was  called  subarrhatio.  Thus  c.  3, 
C.  XXX,  5 :  «  Postquam  arrhis  sponsam  sibi  sponsus  per  digituni  fidei  a  se 
annulo  insignitum  desponderit  ».  It  was  customary',  however,  to  give  as  pledges 
other  things  besides  the  ring,  as  is  clear  from  Martene,  o.  c,  1.  II,  p.  3^,  p.  640 
s.,  where  he  gives  the  prescribed  rubric :  «  Sacerdos  benedicit  annulum  cum 
arrhis  ».  Cf.  p.  616,  also  Lafourcade,  o.  c,  p.  89  s. ;  Glassok,  o.  c,  p.  159. 


20  THE  EFFECTS  OF  BETROTHMENT 

for  in  this  canon  Gregory  IX  decrees  that  the  stipulated  penalty  cannot 
be  exacted  from  one  who  breaks  his  betrothment.  He  is  there  speaking, 
indeed,  of  betrothments  that  are  invalid  owing  to  defect  of  age,  but  the 
reason  adduced  affects  any  imposition  of  a  penalty  ;  «  cum  itaque  libera 
matrimonia  esse  debeant,  et  ideo  talis  stipulatio  propter  poenae  interposi- 
tionem  sitmerito  improbanda  ». 

Moreover,  the  Roman  law  (L.  19,  Dig.,  XLV,  i),  to  which  the  canon 
law  for  the  most  part  conforms,  unless  there  is  proof  to  the  contrary,  rejects 
every  stipulation  of  a  penalty  made  by  private  individuals.  The  analogy  of 
pledges  (arrhae)  does  not  hold  good  ;  these  are  permissible,  since  in  their 
case  there  is  less  reason  to  fear  any  hurtful  excess,  inasmuchas  they  are 
given  in  the  present,  while  penalties  apply  to  the  future  (').  Besides,  in 
questions  of  fact  the  inference  apart  is  not  valid  (*). 

Now  if  these  arguments  do  not  conclusively  prove  the  opinion  that  denies 
any  binding  force  to  penalties  of  this  kind,  they  at  least  render  it  extremely 
probable ;  and  in  the  face  of  this  probability  one  who  has  unjustly  defaulted 
cannot  be  compelled  to  pay  the  stipulated  penalty,  though  the  other  party, 
taking  advantage  of  the  doubt,  may  demand  payment  and  retain  posses- 
sion of  the  same. 

Chapter  II. 

THE  EFFECTS  OF  BETROTHMENT. 

Betrothment  entails  : 

Effects  of  \.  A  diriment  impediment  of  public  decency,  which  invalidates  mar- 
riage with  the  blood  relations  of  the  respective  parties  in  the  first 
degree.  Observe  that  this  impediment  remains  even  after  the  disso- 
lution of  the  betrothment,  but  that  it  does  not  arise  except  from  a 
betrothment  that  is  valid  and  absolute  (').  Cf.  below,  n.  308  ss., 
where  we  treat  more  fully  of  the  impediment  of  public  decency. 


betrothment. 


I.  It  might  be  objected  that  in  the  case  of  pledges  (arrhae),  one  coald  stipulate 
for  the  immediate  delivery  of  a  part  of  the  pledge,  and  for  the  subsequent  dou- 
bling or  quadrupling  of  that  part.  But  cf.  Wernz,  o.  c,  IV,  n.  108  ;  Lafourcade, 
o.  c,  p.  87-88  and  94  ;  Roche,  o.  c,  p.  31-34. 

3.  Cf.  for  the  negative  opinion,  Santi,  I.e.,  n.  38  et  seq.,  Wernz,  o.  c,  IV, 
n.  99,  sub  VI ;  and  for  the  opposite  opinion,  Schmalzgrueber,  in  I.  IV  Deer., 
tit.  I,  n.  138-148,  and  Gasparri,  o.  c,  I,  n.  59-61. 

3.  According  to  cap.  unic.  in  VI°,  IV,  1,  absolute  betrothment,  even  though 
invalid  for  some  reason  other  than  defect  of  consent,  entailed  the  impediment  of 
public  decency,  and,  according  to  the  reckoning  of  Innocent  III  (8,  X,  IV,  14), 


THE  EFFECTS  OF  BETROTHMENT  21 

2.  An  impedient  impedimeitt,  prohibiting  marriage  with  any  other 
person,  as  long  as  the  vaHd  betrothal  exists. 

3.  A  threefold  obligation  : 

a/  A  grave  obligation  of  justice  to  marry  the  betrothed  person  (') 
at  the  proper  time  :  that  is  to  say,  at  the  time  fixed  upon  by  the  con- 
tracting parties,  or,  if  no  such  date  was  fixed  in  advance,  then 
at  the  time  detennined  by  use  and  custom,  o'r  at  a  time  appointed 
by  the  ecclesiastical  judge  (*). 

This  is  an  obligation  of  justice,  since  betrothment  constitutes  a 
bilateral  contract,  in  which  a  strict  right  is  given  in  virtue  of  the 
mutual  consent ;  the  obligation  is  grave,  owing  to  the  nature  of  the 
interests  involved. 

b/  An  obligation,  resting  on  the  above,  of  keeping  the  sponsali~ 
Hal  faith,  that  is  to  say,  of  maintaining  a  mutual  loving  inter- 
course according  to  custom  and  the  circumstances  of  the  case,  and 
of  refraining  from  all  flirtation  with  a  third  party  that  might  car- 
ry with  it  even  an  appearance  of  matiimonial  purport. 

c/  An  obligation,  likewise  resting  on  the  first-named,  that  the 
parties  should  not  render  themselves  unfit  for  marriage,  e.  g.,  through 
impotency  ;  and  again,  that  they  should  not  voluntarily  contract 


up  to  the  fourth  degree.  The  Council  of  Trent,  however,  admitted  the  impedi- 
ment of  public  decency  in  the  case  of  valid  betrothment  alone,  and  restricted  it  to 
the  first  degree.  Cf.  Sess.  XXIV,  cap.  3,  De  Reformatione  matrimonii. 

1.  Collat.  Brug.,  t.  XI,  p.  603,  and  what  we  have  said  above  in  4,  where  we 
observe  that  the  code  Napoleon  recognises  no  binding  force  in  betrothment,  accord- 
ing to  the  established  practice  ;  nay  more,  promises  of  marriage  are  held  to  be 
null  in  law,  as  interfering  with  freedom  of  marriage.  Damages  may,  however,  be 
claimed  under  articles  1382  and  1383,  not  on  account  of  the  breach  of  promise, 
which  the  law  permits,  but  in  consequence  of  the  misdemeanour  or  quasi-misde- 
meanour,  that  is  to  say,  deceit  or  other  like  wrong.  Cf.  Planiol,  o.  c,  n.  788  s. ; 
Lafourcade,  o.  c,  p.  199-215,  compared  with  p.  231  ss.  This  author  gives  on 
page  231  and  following  pages  the  various  legal  enactments  on  this  head,  and  in 
particular  the  English  law,  which  recognises  in  bethrothment  the  obligatory 
force  of  a  contract,  but  does  not  permit  that  the  betrothed  parties  should  be  com- 
pelled to  marry,  and  the  new  German  law  introduced  in  igoo.  Cf.  also  Scherer, 
o.  c,  par.  no,  p.  140  ss, ;  Glasson,  o.  c,  p.  270  s.  ;  Rev.  eccl.  de  Metz,  1900, 
p.  25  s.  ;  Cretinon,  1.  c,  p.  160  s. 

2.  Collat.  Brug.,i.  XI,  p.  693  ;  n.  3,  above,  in  note.  Cf.  Martene,  o.  c,  1. 1,  P.  3, 
p.  633,  630  and  643,  whence  it  appears  that  formerly  there  was  an  interval  of  forty 
days  between  betrothment  and  marriage.  Cf.  also  Lafourcade,  o.  c,  p.  191  et  seq. 


aa  THE  EFFECTS  OF  BETROTHMENT 

any  notable  defect  that  would  make  them  in  a  marked  degree  less 
desirable  as  husband  or  wife.  The  reason  of  this  lies  in  the  fact, 
that  consent  to  a  future  marriage,  implies  an  agreement  on  both 
sides,  not  to  hinder  the  fulfilment  of  the  promise  by  voluntarily 
placing  any  obstacle  in  the  way  of  it.  In  other  words  betrothment 
gives,  not  indeed  a  jus  in  re,  but  a  jus  ad  rem  over  the  respective 
bodies  of  the  contracting  parties  ;  that  is  to  say,  a  right  to  the  jus 
in  re,  or  a  right  to  the  future  use  of  the  body.  This  implies  a  right 
that  the  said  body  should  not  be  rendered  unfit,  or  notably  less  fit, 
for  conjugal  requirements. 

The  obligations  which  we  have  just-described,  and  the  impedi- 
ment arising  from  betrothment  belong  to  the  natural  law  ;  the 
canon  or  ecclesiastical  \2l\v  adds  thereto  the  impediment  of  public 
decency,  and  sanctions  the  prohibitive  impediment  as  well  as  the 
obligation  of  the  betrothed  parties  to  marry  one  another,  that 

already  existed  in  the  natural  law. 
18. 
Liability  of      Note.  1.  Even  if  for  grave  reasons  it  is  not  desirable  to  force 

iustly  dc'  ^^  the  marriage,  those  who  unjustly  default,  and  refuse  to  keep 
faults.  their  promise,  are  bound  to  indemnify  the  injured  party  for  the 
loss  inflicted.  Moreover,  though  the  party  unjustly  forsaken, 
should  suffer  no  detriment  in  consequence,  that  party  may,  even 
by  legal  proceedings  in  the  ecclesiastical  court,  exact  compensa- 
tion from  the  other  as  a  penalty  for  broken  faith  and  satisfaction 
for  the  wrong  done.  Cf.  infra,  n.  34. 

2.  We  have  confined  ourselves  here  to  the  obligation  of  marriage 
as  such,  without  taking  into  consideration  the  various  circum- 
stances that  may  accompany  it.  Certain  circumstances  may,  in- 
deed, give  rise  to  an  obligation  of  marrying,  especially  carnal  inter- 
course, whether  resulting  in  pregnancy  or  not,  whether  occurring 
under  a  promise  of  marriage  or  not.  But  these  questions  belong 
rather  to  a  treatise  de  Jusiitia,  where  the  question  of  restitution 
for  injur)''  to  chastity  and  honour  finds  its  proper  place  (').  We 
have  spoken  above  (n.  2)  of  the  obligation  arising  from  a  simple 
unilateral  promise. 


I.  The  following  is  a  summary  of  the  teaching  on  this  head  :  The  copula  alone, 
where  it  does  not  imply  betrothment  (n.  6),  does  not  induce  an  obligation  of  mar- 
riage, not  even  when  it  has  been  effected  by  violence.  It  is  sufficient  in  such  a 


THE   EFFECTS  OF  BETROTHMBNT  23 

Corollary.  From  what  has  been  said  a  solution  may  be  found  to     Betrothed 
the  much  debated  question,  whether  betrothed  parties  by  criminal  of  criminal 
intercourse  with  a  third  person  incur  the  specific  guilt  of  ittjustice  against    ^ut^'^^ty^j 
the  other  party  to  the  betrothment,  and  are  bound  to  declare  the  same  in  person  sin 
confession.  In  solving  this  doubt  some  maintain  that  the  betrothed,  "^"7^^.  ^^^' 
man  and  woman  alike,  are  guilty  of  grave  injustice  ;  others  hold 
the  woman  alone  to  be  so  guilty  ;  while  others,  again,  think  that 
both  parties  are  probably  at  least  to  be  excused  from  grave  injus- 
tice. 

We  consider  that  the  first  opinion  ought  to  be  preferred,  and 
that  either  party  guilty  of  fornication,  is  guilty  also  of  grave  injustice  (*). 

As  a  matter  of  fact  the  sponsalitial  promise  carries  with  it  not 
only  an  obligation  of  marrying,  but  also  a  further  obligation, 
implied  therein,  of  not  rendering  one's  body  unfit  or  less  fit  for 
conjugal  use  ;  but  fornication  undoubtedly  has  this  effect,  and 
consequently  constitutes  a  grave  violation  of  the  engagement 
entered  into  by  the  betrothed  (*). 

case  that  the  seducer  make  reparation  in  some  other  way  for  the  injury  inflicted, 
e.  g.,  by  giving  a  dowry,  according  to  the  old  sfiying  :  Due  vel  dota. 

If  the  copula  results  in  pregnancy^  there  may  then  arise  an  obligation  of  affection 
to  marry  for  the  sake  of  the  child,  in  order  to  render  it  legitimate. 

If  a  promise  of  marriage  simply  is  added  to  the  copula,  it  will  be  considered, 
according  to  the  intention  of  him  who  gave  it,  as  binding  injustiu  (cf.  n.  2).  If  the 
copula  was  permitted  in  consequence  of  the  promise  of  marriage,  then,  provided 
the  promise  was  a  serious  one,  there  is  an  obligation  in  justice  to  marry,  though 
the  contract  was  made  with  an  immoral  condition  or  for  an  immoral  object ; 
if  the  promise  wzs  fictitious,  then,  as  a  rule,  the  party  who  made  the  promise  is 
under  an  obligation  to  marry,  not  in  virtue  of  his  promise,  but  in  consequence  of 
the  injur)"  inflicted,  which  he  cannot  otherwise  repair.  Cf.  Collat.  Brug.,  t.  II,  p. 
615  ss. 

As  regards  the  cessation  of  the  obligation  :  note  in  the  first  place,  that  an  obli- 
gation of  affection  more  easily  ceases  than  one  of  justice;secondly,that,  as  a  rule, 
an  obligation  of  justice  is  extinguished  by  those  causes  that  put  an  end  to  the  spon- 
salitial obligation,  according  to  what  we  shall  have  to  say  in  chapter  IV  ;  thirdly, 
that  where  the  obligation  remains,  it  is  scarcely  ever  to  be  urged  against  an 
unwilling  and  recalcitrant  party,  but  that  recourse  should  rather  be  had  to  some 
amicable  arrangement,  as  in  the  case  of  betrothment.  See  n.  34. 

1.  We  mean  fornication  taken  by  itself,  and  abstracting  from  any  amorous 
intercourse  that  went  before,  as  if  with  a  view  to  marriage  ;  though,  of  course, 
this  latter  would  also  be  a  breach  of  sponsalitial  faith,  according  to  what  we 
have  said  above. 

2.  That  sponsalitial  faith  is  violated  by  fornication,  is  corroborated  by  c.  35, 


24  THE  EFFECTS  OF  BETROTHMENT 

It  would  certainly  appear  that  a  greater  injustice  is  done  to  the 
man  by  the  criminal  misconduct  of  his  fiancee,  than  to  her  by  a 
similar  act  on  the  part  of  the  man  ;  nevertheless  it  seems  that  we 
cannot  deny  the  absolute  gravity  of  the  injury  in  either  case,  at  all 
events,  where  families  of  decent  condition  are  concerned  (').  The 
gravity  of  the  injury  is  evident  from  the  fact  that,  as  a  rule,  an 
honest  girl  is  seriously  offended,  when  she  discovers  that  her 
betrothed  has  been  guilty  of  such  a  fault  ;  and  also  from  the  con- 
sideration that  ordinarily  the  betrothment  is  thereby  rendered 
dissoluble,  at  the  discretion  of  the  innocent  party  (*). 

From  what  has  been  said  we  may  reasonably  conclude  that  the 
more  rigorous  opinion  alone  is  intrinsically  probable,  and  conse- 
quently, looking  at  the  matter  objectively,  betrothed  persons,  who 
have  committed  fornication  with  a  third  party,  are  bound  to  make 
known  in  confession  the  circumstance  of  their  betrothal ;  and 


X,  n,  tit.  34,  where  Innocent  III  decrees  :  «  Si  quis  juraverit  se  ducturum  ali- 
quam  in  uxorem,  non  potest  ei  fornicationem  opponere  praecedentem,  sed  sub- 
sequentem,  ut  illam  non  ducat  in  uxorem  ;  quia  in  illojuramento  talis  debet 
conditio  subintelligi :  si  videlicet  ilia  (sponsa)  contra  regulatn  desponsationis  non 
venerit.  »  Cf.  c.  23,  X,  IV,  i ;  cf.  also  Lafourcade,  o.  c,  p.  41  and  72,  where 
he  sets  forth  the  provisions  of  the  ancient  German  law  against  unfaithful  _^flW- 
cees ;  likewise  L.  13  §  3,  Dig.  XLVIII,  5,  where  a  fiancee  is  declared  guilty  of 
adultery,  because  it  is  lawful  to  violate  neither  marriage  nor  the  hope  of  mar- 
riage, (nee  matrimonium  «<!C s/>«m  matrimonii). 

I.  If  the  betrothed  parties  know  one  another  to  be  of  immoral  life,  and  care 
littie  for  their  mutual  good  name,  a  fresh  act  of  fornication  will  not  greatly  dis- 
tress them,  and  if  the  man,  or  even  the  woman,  should  be  guilty  of  such  miscon- 
duct, they  will  hold  the  injury  as  little  or  nought. 

3.  This  more  rigorous  opinion  is  favoured  by  many  writers  ;  the  older  are 
quoted  and  followed  by  the  Salmanticenses,  Cursus  theol.  moral,  tr.  IX,  Cap.  i, 
n.  II.  Among  the  more  recent  may  be  mentioned  Bangen,  Instr.  pract.,  I,  p.  13  ; 
RossET,  o.  c,  t.  II,  n.  957-964,  and  Ballerini-Palmieri,  Opus  theol.  mor.,  Prati, 
1889-1893,  t.  VI,  n.  148-163 ;  the  two  last  named  have  no  hesitation  in  denying 
intrinsic  probability  to  the  opposite  opinions  ;  Benedict  XIV,  Instit.  46,  n.  ig, 
defends  the  same  opinion.  Many  modern  theologians,  as  Lehmkuhl,  o.  c,  1. 11,- 
n.664;  Bucceroni,  Instit.  theol.  morales,  Romae,  1893,  t.  II,  948:  Genicot,  Theol, 
mor.  instit.,  t.  II,  n.  444  ;  Noldin,  De  sexto  Praecepto,  1900,  n.  19  ;  Marc,  Instit. 
mor.,  1. 1,  n.  775  ;  Aertnys,  Theol.  mor.,  1890, 1. 11,  n.  429  ;  Gasparri,  o.  c, 
n.  66,  declare  the  matter  doubtful,  and  so  exempt  penitents  from  the  obligation 
of  making  known  the  circumstance  :  for  the  most  part  they  refrain  from  discuss- 
ing the  reasons,  and  rely  solely  on  extrinsic  authority,  especially  on  that  of 
St  Alphonsus,  merely  repeating  his  words  or  invoking  his  authority. 


IMPEDIMENTS  OF  BETROTHMENT  25 

confessors  ought  to  question  them  about  it,  as  occasion  offers.  If, 
however,  anyone  considers  that  the  intrinsic  improbability  of  the  con- 
trary opinion  is  not  established,  he  can  adopt  the  more  Uberal  opinion, 
and  put  it  in  practice,  relying  upon  its  extrinsic  probability. 

Should  there  be  occasion  to  ascertain  from  a  penitent  if  he  is 
betrothed,  this  will  present  no  great  difficulty  to  the  confessor, 
since  in  most  cases  the  circumstance  will  declare  itself  sponta- 
neously, in  answer  to  other  questions  that  have  to  be  put  in 
order  to  secure  integrity  of  confession,  or  for  the  purpose  of 
direction. 

Chapter  III. 

IMPEDIMENTS  OF  BETROTHMENT. 

20. 

I.  Betrothment  is  impeded  i.  e.,  rendered  illicit,  especially  by  Impediments 

the  reasonable  refusal  of  parental  consent.  betrothment 

Explanation  :  a/  We  do  not  say  that  it  is  always  and  every- 
where unlawful  to  enter  into  betrothm.ent  without  asking  parental 
consent,  (for  herein  regard  must  be  had  to  the  customs  that  pre- 
vail) ;  but  due  reverence  for  parents  demands  that  it  should  not 
be  contracted  in  opposition  to  their  reasonable  wish  ('). 

b/  If  the  dissent  of  the  parents  affects  the  promised  marriage 
itself,  then  the  betrothment  is  invalid,  according  to  what  we  shall 
have  to  say  under  II,  since  there  is  then  a  prohibitive  impediment 
to  the  marriage. 

II.  Betrothment  is  rendered  null  or  invalid  : 

21. 

A.  By  want  of  the  use  of  reason,  or  even  of  the  presumed  age  or  render  it 

of  reason,  viz.  seven  years,  as  we  have  seen  above.  '*"   " 

B.  By  any  matrimonial  impediments  whatsoever,  whether  diri- 
ment or  impedient,  that  are  of  themselves  perpetual  and  independent  of 
the  will  of  the  contracting  parties,  both  those,  from  which  a  dispen- 


I.  Ivo  Carnutensis  describes  the  ancient  law  of  the  Church  in  Panormia,  I,  IV, 
c.  12,  apud  Migne,  vol.  161,  col.  1346.  Cf.  for  the  Roman  law,  LL.  11-13.  Dig., 
XXni,  I.  Cf.  Lafourcade,  o.  c,  p.  58  ss.;  see  also  what  we  say  below  n.  248  ss. 
concerning  parental  consent  with  respect  to  marriage  ;  cf.  also  Rev.  eccl.  de  Liege, 
in,  p.  100  ss.,  where  the  duty  of  children  towards  their  parents  in  this  matter  is 
most  skilfully  treated.  Cf.  in  fine,  the  Causa  Milevitana,  33  Dec.  1910,  in  the 
Acta  A.  S.,  Ill,  p.  76  ss. 


26  IMPEDIMENTS   OF   BETROTHMENT 

sation  cannot  be  given,  or  is  not  usually  given,  and  also  those, 
from  which  it  is  customary  to  grant  a  dispensation  ;  this  holds 
good,  even,  it  appears,  if  the  betrothment  is  entered  into  tinder  a 
condition  of  obtaining  a  dispensation. 

Explanation.  1.  The  impediments  are  understood  as  existing  at 
the  moment  when  the  betrothal  is  made.  Of  the  case  in  which  they 
supervene  upon  a  contract  already  made,  we  shall  speak  below, 
n.  25. 

2.  We  say  :  of  themselves  perpetual  and  independent  of  the  will  of  the 
contracting  parties  ;  because  impediments  which  are  of  a  temporary 
nature,  so  as  to  disappear  spontaneously  with  the  lapse  of  time,  or 
which,  if  of  themselves  perpetual,  may  be  removed  at  the  will  of 
the  betrothed,  do  not  affect  the  validity  of  the  betrothment,  provid- 
ed, as  we  suppose,  there  is  a  tacit  condition  of  marrjung  after  the 
removal  of  the  impediment.  This  is  the  case  with  the  prohibited 
time,  impuberty,  a  temporar}'  vow  of  chastity,  mixed  religion  and 
disparity  of  worship,  where  the  non-catholic  or  infidel  party  is 
willing  to  embrace  the  faith. 

3.  The  reason  why  betrothment  is  rendered  null  by  a  prohibitive 
impediment  of  marriage  is  that  no  one  can  validly  promise  that 
which  is  impossible  or  unlawful. 

4.  Among  those  causes  which  render  marriage  unlawful,  and 
betrothment  consequently  null,  may  be  reckoned  an  inequality  of 
condition  between  the  parties  desiring  to  marry,  so  great  and  of 
such  a  kind,  that  the  marriage  cannot  take  place  without  grave 
dishonour  to  a  whole  family.  If  the  inequality  is  not  so  excessive, 
the  betrothment  is  not  thereby  annulled,  though,  if  the  inequality 
was  unknown,  it  may  be  rendered  subject  to  rescission,  according 
to  what  we  shall  say  below,  n.  28. 

inparticular,      5.  It  seems  necessary  to  state  that  betrothment  is  null  and  void 
fftade  with  a  through  the  presence  of  a  matrimonial  impediment,  subject  to  dis- 

marriage  im-  pensation,  even  though  it  has  been  entered   into  under  a  condition 

pedtmcnt,         ... 
under  acondi-  of  obtaining  a  dispensation. 

tionof  obtain-      Conditional  betrothment  of  this  kind  is  not,  indeed,  by  its  nature 
tng  a  atspett-  _  ^  '    ^ 

sation,isnull,  null.  If  we  consider  that  alone,  there  is  here,  as  in  other  betroth- 
fiature       nients  with  a  suspensive  condition,  an  obligation  of  awaiting  the 
fulfilment  of  the  condition,  together  with  a  prohibition  of  con- 
tracting marriage  or  a  fresh  betrothal  with  another  party  ;  and 


THE  DISSOLUTION   OF  BETROTHMENT  27 

on  the  fulfilment  of  the  condition,  it  forthwith  becomes  valid  ('). 

But  from  the  positive  will  of  the  Church  it  seems  that  ^wch.  but  by  the po- 
betrothment  is  null.  This  positive  will  of  the  Church  is  apparent  in  ^fhTchZch! 
various  Roman  decisions  given  in  the  N.  R.  th.,  IV,  p.  582  ss.  ('). 
There  is  also  the  authority  of  several  authors,  among  whom  may- 
be mentioned,FEYE,Dg  Imp,,  n.  394  ;  Ballerini-Palmieri,o.c.,VI, 
p.  96  ss.  ;  Santi,  in  tit.  V,  n.  30  ss.  ;  Wernz,  o.  c,  IV,  n.  95  s.  ; 
De  Becker,  De  matr.,  p.  8  s.  ;  N.  R.  th.,  1.  c,  p.  571  ss.,  and  the 
authors  there  adduced. Gasp arri  holds  the  contrary  opinion  (o.c, 
n.  50  ss.),  together  with  the  Doctors  quoted  by  Feye. 

Santi  (1.  c.)  remarks  :  «  The  Congregation  acts  thus,  it  appears, 
to  remove  as  far  as  possible  between  relatives,  those  dubious  and 
dangerous  attachments  made  under  the  condition  of  obtaining 
dispensation  later  ». 

Hence  it  follows,  that  those  united  in  a  betrothment  such  as 
we  have  been  speaking  of,  have  not  contracted  the  impediment 
of  public  decency,  and  are  free  to  pass  on  to  other  engagements, 
without  being  obliged  to  procure  a  dispensation  or  to  wait  for 
one  (').  Nevertheless,  as  the  fullest  certainty  is  desirable  in  a 
matter  of  this  kind,  the  betrothed,  in  such  a  case,  must  not  be 
declared  free  from  all  obligation,  and  from  the  impediment  of 
public  decency,  without  recourse  being  had  to  the  Ordinary  or  to  the 
Holy  See.  The  party  forsaken,  in  consequence  of  the  existing 
doubt,  may  press  his  or  her  claim  against  the  party  repudiating 
the  contract. 


1.  It  is  to  no  purpose  to  object  that  the  condition  is  an  immoral  one,  as  it  leads 
to  the  extorting  of  a  dispensation  and  so  does  violence  to  the  law. 

2.  It  is  there  a  question  of  betrothment  judged  before  a  dispensation  had  been 
obtained  ;  but  this  makes  no  difference,  since  it  is  declared,  without  any  restric- 
tion, that  the  contract  was  altogether  null,  and  induced  no  obligation,  not  even  of 
applying  for  a  dispensation,  or  awaiting  the  issue. 

3.  Cf.  Wernz,  o.  c,  IV,  n.  95,  note  (54),  where  he  remarks  that  the  betrothed 
are  bound  to  keep  their  promise  by  a  certain  sense  of  honour  (ex  quadam  hones- 
tate) ,  but  not  by  any  strict  obligation. 


a8  THE  DISSOLUTION  OF  BETROTHMENT 

Chapter  IV. 
THE  DISSOLUTION  OF  BETROTHMENT. 


22. 


Difference        Observation.  Betrothment  validly  contracted  is   not  indisso- 
between    dis-  ,    ,  ,      ,  i        i-        ,       i    r  •  \  i  • 

solved    and  luble,  but  may  be  dissolved   for  various  reasons  ('),  and  in  a  two- 

betrotlment  ^^^^  manner  :  either  i.  in  such  a  way  as  to  be  ipso  facto  dissolved, 
and  so  straightway  cease  to  exist ;  or  2.  in  such  a  way  as  to  be 
dissolnbh  or  subject  to  rescission  at  the  will  of  one  party,  or  of  both. 
In  the  first  case  it  simply  ceases  to  exist ;  in  the  second  it  con- 
tinues to  exist  until  the  one  party  or  the  other,  having  the  power 
to  do  so,  cancels  the  contract.  The  party  exercising  this  right  to 
withdraw  is  not  bound  to  marr}',  nor  to  refrain  from  marrying 
another. 

In  whatever  way  a  betrothment,  once  validly  contracted,  is 
dissolved,  the  diriment  impediment  of  public  decency  remains  in 
force,  and  only  the  prohibitive  impediment,  prohibiting  another 
marriage,  together  with  the  obligation  of  marr}ang  the  betrothed 
person,  ceases  to  exist. 

It  should  be  noted  also,  that  the  causes  dissolving  betrothment 
likewise  remove  the  religious  obligation  contracted  by  an  oath,  if 
such  was  added  to  the  contract,   since  the  accidental  follows  the 
principal.  Cf.  Wernz,  o.  c,  n.  109. 
Tlie  causes       Bearing  in  mind  what  has  been  said  above,  the  following  are  the 
principal  causes  whereby  betrothment  is  dissolved  or  rendered  dis- 
soluble. 
23. 
1.  consent  of     I.  Consent  of  the  betrothed  parties. 
tJte  betrothed ; 

1.  Betrothment  is  dissolved  by  ihtfree  and  mutual  consent  of  the 

parties  (*),  even  if  privately  given,  to  the  rescission  of  the  con- 
tract;  provided,  however,  that  they  are  of  a  marriageable  age. 
Those  under  that  age,  have  no  power  to  revoke  their  consent 
before  attaining  puberty,  as  will  be  presently  noted,  since  the 
Church  incapacitates  them  from  doing  so,  lest  they  should  rashly 
entangle  themselves  in  successive  promises  of  marriage. 

2.  Revocation  of  consent  by  one  party   renders  betrothment 


I.  In  the  Greek  Church  betrothment  induces  a  bond,  which,  though  not  indis- 
soluble, is  much  stronger  than  in  the  Latin  Church.   Cf.  Vering,  o.  c,  p.  856  s. 
3.  C.  3,  X,  IV,  I. 


THE  DISSOLUTION   OF  BETROTHMENT  29 

dissoluble  at  the  will  of  the  other,  since   there  is  no  obligation  to 

keep  faith  with  him  who  breaks  his  promise. 

24. 

II.  Impuberty  of  one  or  both  of  the  contracting  parties :  Betroth-  2,  impuberty; 

ment  between  those  who  are  not  of  a  marriageable  age,  or  between 
one  who  is,  and  one  who  is  not  of  that  age,  is  valid  indeed,  but  dis- 
soluble at  the  will  of  the  party  subsequently  attaining  puberty  {*). 
That  party,  on  reaching  marriageable  age  is  at  liberty  to  renounce 
the  betrothment  within  three  days  from  the  time  that  he  became 
aware  of  his  privilege  (*),  with  the  single  exception,  perhaps,  of 
the  case  in  which  the  contract  has  been  confirmed  by  oath  (*) 
by  parties  below  the  age  of  puberty,  but  very  near  to  it.  The  law 
makes  this  provision,  as  we  have  seen,  in  view  of  the  imperfect 
discretion  of  those  under  the  age  of  puberty  (*). 

III.  A  supervening  matrimonial  impediment. 

1 .  Betrothment  is  dissolved  when  a  perpetual  matrimonial  impe-  3.  a  superven- 
diment,  whether  diriment  or  impedient,  supervenes,  and  when  ^Ifar^n'bedi- 
this  impediment  is  one  which  does  not  admit  of  dispensation,  or      ment ; 
which,  while  capable  of  dispensation,  has  been  contracted  by  both 
parties.  In  this  latter  case  it  is  held  as   equivalent  to  a  mutual 
renunciation  of  the  betrothment. 

If  an  impediment  that  does  not  admit  of  dispensation  has  been 
contracted  through  the  fault  of  one  of  the  parties,  and  the  betroth- 


1.  C.  7,  X,  IV,  2.  Cf.  supra,  n.  11. 

2.  There  is  no  reason  to  add,  with  the  Theol.  Mechl.,  o.  c,  n.  4,  «  modo  inter  eos 
fimpuberesj  non  intervenerit  copula  carnalis  »  ;  and  to  appeal  to  cap.  8, of  this  title. 
If  the  copula  occurred  before  the  sponsalitial  contract, that  is  a  proof  that  betroth- 
ment took  place  between  those  who  had  reached  the  state,  if  not  the  years,  of 
puberty ;  and  so  the  privilege  does  not  exist.  If  the  copula  was  subsequent  to  the 
contract,  then,  with  the  attainment  of  physiological  puberty,  the  time  for  using 
the  privilege  began.  In  the  passage  of  the  Decretals  referred  to,  it  is  a  question 
of  matrimonial  consent  given  before  the  years  of  puberty ;  from  which  it  is 
lawful  to  withdraw,  on  attaining  that  age,  provided  carnal  intercourse  has 
not  intervened  :  because  then  it  would  be  evident  that  puberty  was  present, 
and  that  the  marriage  would  ipso  facto  exist. 

3.  Cf.  Wernz,  o.  c,  n.  no,  note  (130). 

4.  For  a  like  reason,  namely  on  account  of  the  absence  of  complete  freedom, 
a  betrothment  entered  into  under  the  infliction  oi  grave,  or  even  of  slight  fear,  is 
dissoluble,  at  all  events  in  foro  interna,  provided  the  engagement  was  really 
made  under  the  influence  of  that  fear. 


30  THE  DISSOLUTION   OF   BETROTHMBNT 

ment  consequently  dissolved,  the  party  at  fault  is  bound  to  make 
compensation  for  the  injury  inflicted. 

2.  Betrothment  is  dissoluble  when  the  act  of  one  or  other  of  the 
parties  gives  rise  to  a  matrimonial  impediment,  either  temporary 
or  perpetual.  In  that  case  the  innocent  party  may  either  withdrav^ 
from  the  engagement,  or  insist  on  his  right  ;  in  the  latter  event 
the  offending  party  is  bound  to  procure  a  dispensation,  if  that  can 
be  done  without  any  excessive  detriment ;  or  if  the  impediment  is 
of  a  temporary  nature,  he  must  keep  his  promise  on  the  removal 
of  the  impediment. 

This  occurs  especially  when  the  man  has  been  guilty  of  crimi- 
nal misconduct  with  the  sister  of  his  fiancee,  or  with  some  blood- 
relation  of  hers  within  the  second   degree.  The  fiancee  may  then 
insist  on  the  marriage,  but  on  her  side  is  freed  from  all  obligation 
to  marry.  In  such  a  case  it  would  often  be  better  to  advise  the 
girl  to  waive  her  right,  and  permit  the  man  to  marry  her  sister 
or  other  blood-relation  with  whom  he  has  misconducted  himself, 
especially  if  such  should  be  enceinte.  Cf.  Collat.  Brug.,  t.  XI,  p. 
641  ss. 
but  special  at-      3.  Special   attention    must  be  given  to  the   supervening    on 
tention   must  betrothment  of  the  impediment  arising  from  a  vow  ;  that  is  to  say, 
supervention  from  a  vow  of  perfection,  or  from  the  actual  embracing  of  that 
mentofavow'  state,  which  is  considered  as  equivalent  to  a  vow. 

a/  If  both  parties  take  the  vow,  or  choose  the  more  perfect  life, 
the  betrothment  is  spontaneously  dissolved,  according  to  what  we 
have  already  said  under  1 . 

b/  Hone  party  only  takes  the  vow,  or  embraces  the  more  perfect 
life,  then  the  betrothment  is  dissoluble  at  the  will  of  the  other  party, 
in  accordance  with  the  rule  laid  down  above  under  2  ;  it  would 
moreover  appear  that  the  betrothment  is  dissolved  as  often  as 
either  party  has  contracted  Si  perpetual  ohXigSLiion,  even  though  dis- 
pensable, to  the  more  perfect  life,  as,  for  instance, when  he  (or  she) 
makes  a  solemn,  or  even  a  simple  profession  in  an  approved  con- 
gregation, or  is  promoted  to  sacred  orders,  or  again  takes  a  vow 
of  perpetual  chastity  in  the  world,  or  binds  himself  by  a  perpetual 
vow  to  the  religious  life  or  to  celibacy.  It  would  appear  that  the 
special  pre-eminence,  which  this  impediment  arising  from  a  vow, 
possesses  over  all  other  matrimonial  impediments  in  dissolving  the 


THE  DISSOLUTION  OF  BBTROTHMBNT  3I 

sponsalitial  contract,  is  due  to  the  well  known  preference  that  the 
Church  shows  for  the  more  perfect  life  as  compared  with  the  mar- 
ried state.  This  preference  is  apparent  also  in  the  privilege  conced- 
ed even  to  those  who  are  married,  before  the  actual  consumma- 
tion of  the  marriage  (*).  If  only  a  temporary  obligation  has  been 
contracted,  as  for  example  by  a  vow  for  a  limited  period,  by  sim- 
ply entering  the  religious  state,  or  by  receiving  the  tonsure  or 
minor  orders,  the  betrothment  is  not  dissolved  ;  consequently  the 
party,  on  giving  up  the  more  perfect  state,  is  bound,  at  the  instance 
of  the  other  party,  to  fulfil  his  (or  her)  promise  of  marriage, 
though,  owing  to  the  preference  due  to  the  more  perfect  life,  on 
which  he  has  entered,  he  is  not  bound  to  give  it  up  in  order  to 
marry,  or  to  seek  a  dispensation  for  that  purpose. 

IV.  Another  marriage  or  a  fresh  betrothment. 

26. 

1 .  A  fresh  betrothment  (*),  it  attempted  by  both  parties,  dissolves    4.  another 

the  former  contract.  If,  however,  it  is  attempted  by  one  "^^^y ^/sh*beirath- 
only,  then  the  existing  contract  is  rendered  dissoluble  at  the  will  of       '»*«< ; 
the  other  party. 

2.  The  supervention  of  an  invalid  marriage  dissolves  the  betroth- 
ment, or  renders  it  dissoluble,  according  as  marriage  has  been 
contracted  by  both  parties  or  by  one  only,  as  stated  above 
in   1. 

A  valid  marriage  certainly  dissolves  the  betrothment,  if  both  of 
the  parties  marry.  If,  however,  only  one  of  them  should  marry,  it 
is  a  moot-point  whether  the  betrothment  is  thereby  dissolved,  or 
merely  rendered  dissoluble,  so  that,  if  the  innocent  party  does  not 
waive  his  claim,  the  offending  party  remains  bound  by  the  pre- 
vious obligation  to  marry  after  the  dissolution  of  the  existing  mar- 
riage. 

Theoretically  speaking,  though  authors  are  not  agreed  on  this 
point  ('),  it  cannot  be  admitted  that  the  contract  is  dissolved, 
and  consequently  the  obligation  must  be  maintained.  In  practice, 

1.  See  below  n.  133. 

2.  A  fresh  betrothment,  contracted  while  the  former  is  still  in  force,  is  certainly 
invalid. 

3.  Cf.  Wernz,  o.  c,  IV,  n.  114,  note  (140),  where  he  contends  that  the 
betrothment  is  dissolved,  and  that  all  obligation  ceases,  in  opposition  to  Santi, 
in  I,  IV,  tit.  I,  n.  50,  and  Anul,  eccl.,  1901,  p.  144  s. 


32  THE  DISSOLUTION   OF   BETROTHMENT 

however,  the  obhgation  may  for  the  most  part  be  ignored,  at  all 
events  when  the  marriage  is  not  quickly  terminated,  since  under 
the  circumstances  it  is  hardly  likely  to  be  insisted  upon  by  the 
party  forsaken. 

V.  Flirting  with  a  third  party. 
27. 

5.  flirting       Since  flirtation  of  this  kind  constitutes  a  breach  of  faith,  and 

i>artv  •  imphes  a  renunciation  of  the  contract,  betrothment  is  thereby 
rendered  dissoluble  at  the  will  of  the  other  party,  in  accordance 
with  what  we  have  said  above. 

We  are  speaking  here  of  the  courting,  of  a  third  person  with  a 
view  to  marriage,  or  oi  such,  courting  as  is  to  all  appearance  car- 
ried on  with  a  view  to  marriage  ;  for  this  latter  is  equally  inju- 
rious to  the  other  party.  Moreover  such  conduct  will  easily  give 
grounds  for  uneasiness  as  to  future  conjugal  fidelity,  of  which  we 
shall  speak  under  VI. 

VI.  Subsequent  change  or  discovery  of  defect. 

28 

6.  subsequent      We  are  to  be  understood  as  speaking  of  some  notable  change  or 

change  or  dis-  defect. 
covery  of  de- 
fect ;  Revocability  of  the  betrothment  by  the  one  party  on  account  of  a 

notable  change  in  the  other  arises  from  the  fact,  that  the  respec- 
tive parties  are  rightly  considered  to  have  promised  to  marry  one 
who  is  morally  identical  with  the  person  with  whom  the  sponsali- 
tial  contract  was  made. 

That  the  discovery  of  a  grave  defect,  even  of  one  that  had  not  been 
fraudulently  concealed,  brings  with  it  the  power  to  dissolve  the 
betrothment,  arises  from  the  provisional  nature  of  the  sponsahtial 
contract,  and  from  the  consideration  that  is  due  to  the  liberty  and 
stability  of  marriage.  Hence  this  reason  for  dissolving  the  contract 
especially  applies  to  a  defect  that  forebodes  an  unhappy  issue  to 
the  marriage,  or  makes  conjugal  fidelity  suspect. 
Examples.        'S'«c^  «^*  ^^^  following  cases  : 

1 .  If  in  one  of  the  parties  there  should  supervene,  or  be  brought 
to  light  :  heresy,  the  commission  of  a  crime,  ill  fame,  loss  of  vir- 
ginity, sterility  consequent  on  a  surgical  operation,  deformity, 
inaptitude  for  bearing  the  burdens  of  the  married  state,  poverty, 
and  other  like  defects. 

2.  A  betrothment  may  also  be  rendered  dissoluble,  at  least  in 


THE  DISSOLUTION   OF  BETROTHMENT  33 

conscience,  if  in  the  mutual  intercourse  of  the  parties  it  becomes 
evident,  without  the  detection  of  any  special  fault,  that  there  is  a 
contrariety  of  disposition,  such  as  to  give  good  reason  to  fear  that 
the  marriage  will  turn  out  an  unhappy  one  ('). 

3.  Fornication  with  a  third  person,  even  apart  from  any  iBirtation, 
which  may  perchance  have  preceded  it,  and  of  which  we  have 
spoken  above  (V.),  constitutes  a  cause  of  dissolubility  on  three 
grounds  :  firstly,  it  induces  a  change,  which  in  the  case  of  either 
of  the  betrothed  is  regarded  as  grave,  at  least  among  decent  peo- 
ple ;  secondly,  it  gives  rise  to  a  suspicion  of  subsequent  conjugal 
infidelity  ;  while,  in  the  third  place,  as  we  have  said  above  (n.  19), 
it  is  tantamount  to  an  implicit  renunciation  of  the  contract,  conse- 
quent on  the  neglect  of  the  obligation  contained  therein  of 
mutually  preserving  bodily  integrity  (*). 

Immodest  touches  indulged  in  with  a  third  person  do  not  of  them- 
selves constitute  a  notable  defect,  though,  if  frequent  and  unre- 
strained, they  may  give  ground  for  well  founded  doubt  as  to  future 
conjugal  fidelity,  and  may  accordingly  under  this  head  render 
the  betrothment  dissoluble  at  the  will  of  the  other  party. 

Note,  a/  If  one  of  the  parties  should  unexpectedly  attain  to 
greater  wealth  or  higher  social  position,  or  should  have  the  offer 
of  a  more  desirable  engagement,  there  are  not  wanting  authors  (') 
who  hold  as  probable  the  opinion  that  such  a  party  might,  though 
not  without  reproach,  lawfully  withdraw  from  the  previous  con- 
tract on  the  ground  that  the  condition  in  life  of  the  other  party  is 


1.  The  apprehension  of  an  unhappy  issue  to  the  marriage  does  not  render  the 
betrothment  subject  to  rescission,  and  cannot  extinguish  the  obligation  of  mar- 
rying, except  in  so  far  as  it  rests  on  some  objective  basis,  on  some  actual  defect 
or  real  contrariety  of  disposition.  This  is  not  the  case,  if  the  apprehension  arises 
from  the  purely  subjective  disinclination  of  one  of  the  parties  to  marry.  Under 
such  circumstances  the  betrothment  holds  good  together  with  its  obligation, 
though  as  a  rule  this  is  not  to  be  urged,  as  we  shall  observe  under  n.  34. 

2.  If  the  act  of  fornication  took  place  between  one  of  the  betrothed  and  a  blood- 
relation  of  the  other  within  the  second  degree,  there  arises  a  fourth  ground  of 
dissolubility  in  favour  of  the  innocent  party,  in  accordance  with  what  we  have 
said  above  under  n.  25. 

3.  For  example,  Pruner,  Lthrbuch  der  Pastor altheologie,  Paderborn,  1904, 
I,  n.  815  ;  Wernz,  0.  c,  n.  116. 


34  THE  DISSOLUTION  OF  BETROTHMENT 

relatively  lowered.  It  is  difficult,  however,  to  admit  this,  unless 
perhaps  in  quite  exceptional  circumstances,  as,  for  instance, 
where  owing  to  the  change  in  the  social  position  of  the  man,  his 
betrothed  would  obviously  be  quite  unequal  to  the  discharge  of 
the  duties  that  would  fall  upon  her  as  his  wife. 

b/  If  the  defect  was  known  before  the  betrothment  took  place, 
it  does  not  render  the  contract  subject  to  rescission  (').  The  same 
holds  good  if  the  contract  was  ratified  after  knowledge  of  the 
defect  (»). 

Scholion.  With  regard  to  the  obligation  that  the  betrothed  are 
under  of  mutiuilly  manifesting  their  hidden  dejects^  the  following 
rules  may  be  laid  down  : 

1 .  As  regards  those  defects  that  do  not  bring  any  grave  injury  or 
disgrace  to  the  other  party,  but  which  would  merely  make  the  mar- 
riage less  acceptable,   without  inflicting  any  serious  injury,  the 
betrothed  are  not  bound  in  justice  to  reveal  them  ;  for  no  one  is 
required  to  make  known  his  own  defects  merely  to  avoid  giving 
displeasure  to  another,  provided  that  this  one  is  not  liable  to  any 
serious  injur}'^  in  consequence   of  them.  Such  defects  would  be 
fornication  in  the  past,  not  followed  by  pregnancy  ;  loss  of  vigour; 
or  a  physical  infiiinity  that  is  not  of  a  contagious  nature. 
The  betrothed     2.  Theoretically  speaking,   those  intending  to  marry  are  respecti- 
'^make  known  ^^^^'  bound  either  to  abstain  from  doing  so,  or  to  make  known  any 
to  one  another  occult  defects  that  would  entail  serious  disgrace  or  injury  to  the 
that  entail    other  party.  «  For,  as  in  other  contracts  it  is  not  lawful  to  pass 

serious  dts-   ^^^  g^jj  article  with  some  hidden  defect  to  the  injury  of  the  other 
grace  or  m-  .       .  _  j      j 

jury,        party,  so  in  like  manner  it  is  unlauwful  to  enter  upon  the  sponsal- 

itial  or  matrimonial  contract  with  an  occult  defect  of  an  injurious 

nature  »  ('). 

Pregnancy  of  the  betrothed  woman  by  some  other  man  would 

be  a  defect  of  this  kind,  except  in  the  case  of  people  lost  to  all 


1.  The  reason  is  because  the  other  party  is  considered  to  have  condoned  the 
defect. 

2.  The  ratification  may  be  made  in  express  words,  or  impHcitly,  v.  gr.,  by  a 
continuance  or  resumption  of  intercourse. 

3.  Theol.  Mechl.,  o.  c,  n.  8.  It  must  be  understood  that  we  are  speaking 
of  such  defects  as  do  not  destroy  aptitude  for  marriage  and  its  essential  duties, 
otherwise  it  is  evident  that  the  marriage  is  absolutely  forbidden. 


IHE  DISSOLUTION   01?  BETROTHMENT  35 

sense  of  decency.  Such  also  would  be  a  contagious  complaint,  as 

syphilis,  or  even  consumption. 

We  have  said  :  theoretically  speaking  ;  because,  looking  at  the  nevertheless 

matter  in  the  concrete,  regard    must  be  had  to  prevailing  customs     ^^  j^^^  iq 

and  common  opinion,  so  that  betrothed  parties  are  not  to  be  com-    prevailing 

t  customs, 

pelled  to  make  known  defects  that  general  usage  and  opinion 

permit  them  to  conceal,  even  though  they  be  injurious  to  the 
other  party.  This  especially  holds  good  with  regard  to  the  pecun- 
iary position  of  the  parties,  for  it  is  a  matter  of  common  exper- 
ience that  their  statements  in  this  respect  are  not  always  to  be 
trusted,  and  it  is  precisely  for  this  reason  that  such  careful 
inquiries  are  usually  made  (*). 

Observe  :  a.  Where  there  is  no  obligation  of  revealing  defects, 
they  may  also  be  deliberately  concealed,  provided  there  is  no 
positive  deception  of  the  other  party. 

b.  It  is  most  advantageous  that  any  existing  defects  should  be 
mutually  known,  and  especially  that  there  should  be  no  conceal- 
ment, as  to  pecuniary  position,  which  might  afterwards  give 
rise  to  misunderstandings  and  disputes.  There  may  even  be  an 
obligation  of  charity  to  make  such  a  revelation,  provided  the 
matter  is  not  such  as  to  prejudice  seriously  the  party  making  it, 
as,  for  instance,  where  it  would  result  in  the  girl  losing  her  good 
name,  or  having  to  remain  unmarried  (*). 


VII.  Lapse  of  time. 

1.  If  a  time  has  been  fixed  for  the  marriage 


30. 


a/  So  as  to  put  an  end  to  the  obligation  in  case  of  delay,  the  con-  7.  Lapse   of 
tract  is  dissolved  if  the  delay  has  occurred  through  the  fault  of  ' 

neither,  or  of  both  of  the  parties.  If  it  has  occurred  through  the 
fault  of  one  party  only,  then  the  contract  will  be  dissoluble  at  the 
will  of  the  other  party. 

b/  If  a  time  has  been  fixed  for  the  purpose  of  rendering  the 


I.  We  suppose,  of  course,  that  some  limit  is  observed,  and  that  the  discrep- 
ancy between  the  actual  and  alleged  state  of  affairs  is  not  altogether  dispropor- 
tionate. 

a.  In  Holland  an  act  is  in  preparation  providing  for  the  compulsory  medical 
examination  of  those  intending  to  marry,  and  for  the  communication  of  the 
result  to  the  respective  parties.  Cf,  Collat.  Brug.,  t.  XV,  p.  19  s.;  Nyhoff, 
0.  c,  p.  54  s. 


36  THE  DISSOLUTION   OF   BETROTHMENT 

obligation  more  urgent,  then  an  involuntary  delay  leaves  the  con- 
tract untouched  ;  but  a  voluntary  and  notable  delay  renders  it 
dissoluble,  when  such  delay  is  made  without  just  cause,  and  the 
other  party  presses  for  the  fulfilment  of  the  promise. 

2.  If  no  time  has  been  fixed  : 

A  delay  notably  in  excess  of  that  usual  in  the  country  concern- 
ed (*),  has  the  same  effect  as  delaying  beyond  the  time  fixed  for 
rendering  the  obligation  more  urgent.  See  1,  b,  above. 

Note.  1.  From  what  has  been  said  above,  we  may  determine  the 
validity  and  stability  of  a  betrothment,  when  one  of  the  parties 
goes  away  to  a  distant  country. 

2.  Whether  a  time  has  been  fixed  for  the  purpose  of  putting  an 
end  to  the  obligation,  or  of  rendering  it  more  urgent,  must  be 
determined  inforo  interno  according  to  the  intention  of  the  contract- 
ing parties.  In  foro  externa  it  must  be  gathered  from  the  words 
employed,  or,  if  these  leave  the  matter  doubtful,  from  the  attendant 
circumstances  and  from  the  motives  that  influenced  the  betrothed 
in  arranging  their  marriage  for  such  a  date  (*). 

31. 
8.  dispensa-      VIII.  Dispensation. 

The  Sovereign   Pontiff  has  the  power  of  dissolving  the  bond  of 

betrothment,  with  its   mutual  obligations,  and  consequently  of 

removing  the  prohibition  to  marry  a  third  person,  even  in  so  far  as 

this  prohibition  arises  from  the  natural  law. 

A.  Proof. 

Proof  that  the     It  is  beyond  contradiction  that  betrothment,   like  every  other 

bamrto  dis-  contract,  produces  mutual  obligations  and  rights  by  virtue  otthe 

I.  In  the  Roman  law,  and  in  the  ancient  German  law  the  delay  could  not 
exceed  two  years.  Cf.  Lafourcade,  o.c,  p.  191  s. ;  Roche,  o.  c,  p.  8  s. 

3.  ScHMALZGRUEBER,  o.  c,  n.  196  s.  :  «  Si  Verba  sint  ambigua...  recurrendum 
ad  causas  et  motiva  ob  quae  terminus  fuit  assignatus.  Nam  si  utraque  pars,  vel 
saltern  ilia  quae  cupit  diem  adjici,apprehendit  sibi  omnino  expedire  ut  brevi  sive 
cum  hac  sive  cum  alia  persona  matrimonium  contrahat,  quia  vel  difficile  ipsi  est 
diutius  a  nuptiis  abstinere,  vel  alia  offeruntur  matrimonia  commoda,  quae  postea 
frustra  desiderabuntur,  censebitur  tempus  adjunctum  obligationi  finiendae.  At  si 
adjicitur  tempus  non  quia  partibus  per  sc  incommodum  est  diutius  abstinere  a 
nuptiis,  sed  quia  nuptias  has  apprehendunt  ut  sibi  commodas,  ideoque  cupiunt 
eas  cito  perfici,  ne  quacumque  ratione  postea  impediantur,  censebitur  adjectum 
tempus  obligationi  intra  illud  tempus  implendae  »  ;  that  is  to  say,  for  the  purpose 
of  rendering  the  obligation  more  urgent. 


THE  DISSOLUTION   OF  BETROTHMENT  37 

natural  law,  and  that  the  common  good  requires  that  these  rights  solve  betroth- 
and  obligations  should  as  a  rule  be  respected.  disTensatton. 

But  we  must  not  conclude  from  this  that  the  contract  can 
never  be  cancelled,  and  that  the  obligation  arising  from  it  can 
never  be  removed.  As  a  matter  of  fact  the  natural  law  does  not 
demand  the  indissolubility  of  betrothment  :  this  contract,  like  so 
many  others  ('),  is  on  the  contrary  subject  to  dissolution.  The 
contracting  parties  have  the  power  to  dissolve  the  contract  under 
various  circumstances,  for  a  variety  of  reasons,  and  even  without 
other  reason  than  their  mutual  desire  to  do  so.  It  this  is  not 
opposed  to  the  natural  law,  neither  is  the  dissolution  occasionally 
pronounced  for  grave  reasons  by  a  higher  authority  opposed  to 
that  law.  Nay  more,  the  common  good  itself,  the  foundation  of  the 
natural  law,  requires  that  the  stipulated  obligation  of  which  we 
are  speaking  should  be  capable  of  invalidation  by  the  head  of  the 
social  body. 

We  must,  therefore,  recognise  that  the  Church  possesses  the 
power  of  dissolving  betrothment  in  the  case  of  the  faithful  ('). 
This  power  the  Church  exercises  from  time  to  time  without  hesi- 
tation, and  therein  we  have  a  proof  of  its  existence  ('). 

B.  As  regards  the  actual  exercise  of  this  power  by  the  Church  it  is  Observations 
necessary  to  make  the  following  restrictions.  In  the  first  place  ^"^^  o/this 
there  must  be  a  grave  reason,   even  when  the  Pope  dispenses  per-      power. 
sonally  ;  secondly,   the  Bishops  are  not  vested  with  this  power ; 
finally,    it  is  the  practice  of  the  Holy  See  to  impose,  in  the  rescript 


I.  We  do  not  deny  that  there  are  contracts  of  a  special  nature,  the  indissolu- 
bility of  which  is  demanded  by  the  natural  law.  Such  is  the  marriage  contract,  as 
we  shall  show  later. 

3.  Our  argument  leads  to  the  recognition  of  the  same  power  in  the  State,  in 
cases  where  the  betrothment  of  non-christians  is  concerned. 

3.  Thus,  on  31  Jan.  1863,  the  S.  C.  C.  replied  in  the  case  of  Titius  and  Caia  : 
«  That  the  impediment  was  removed  on  condition  that  Titius  paid,  by  way  oi 
dower,  600  ducats  to  Caia,  and  undertook  to  make  good  all  losses,  including  the 
education  of  her  child  ».  Acta  S.  Sedis,  I,  p.  242.  In  like  manner,  on  11  Sept. 
1887,  in  answer  to  the  question  :  Whether  there  was  reason  for  removing  the 
impediment  Nihil  transeat,  the  S.  C.  C.  replied  in  the  case  :  «  In  the  affirmative, 
with  a  previous  dispensation,  after  audience  with  the  Holy  Father ;  and  provided 
that  the  man  is  admonished  to  give,  according  to  his  means,  to  the  betrothed 
and  her  child  an  equitable  compensation,  to  be  determined  by  the  Archbishop 
(of  Ostuni)  ».  Leitner,  Lehrbuch,  p.  347. 


38  THE  REGULATION  OF  BETROTHMENT 

dispensing  from  the  impediment,  an  equitable  compensation  for 
the  benefit  of  the  party  forsaken.  If  this  compensation  is  not  fixed 
by  the  Sacred  Congregation  of  the  Council,  it  rests  with  the 
Bishop  to  determine  the  amount,  as  in  the  case  of  1887  ('). 

Chapter  V. 
THE  REGULATION  OF  BETROTHMENT. 

Article  i.  To  whom  the  regulation  of  betrothment  belongs. 

32. 
The  regulati-      As  betrothment  is  a  preliminary  preparation  for  marriage,  its 

mentbetween  regulation  belongs   to   the  same  authority  as  that   of  marriage 

christians    itself.   This  regulation,  as  we  shall  afterwards  show,  belongs  to 
belongs  to  the  .... 

Churchalone.  the  Church  alone  where  christian  marriage  is  concerned,  while  the 

State  has  the  power  of  regulating  the  marriage  of  non-christians, 
and  also  of  determining  the  civil  effects  of  christian  marriage  ('). 
The  legislative  power  over  betrothment  is  exercised  by  the 
Sovereign  Pontiff,  and  by  him  alone,  so  that  the  Bishops  have  no 
power  to  set  up  impediments  to  betrothment  ;  but  to  them  it 
belongs  to  exercise  a  judiciary  power  as  judges  oitht  forum  exter- 
num. As  regards  the  parish  priest,  he  is  not  a  judge  of  the  forum 
externum,  but  it  is  his  office  to  examine  cases  of  this  kind  for  the 
purpose  of  duly  referring  them  to  the  Bishop.  He  can,  however, 
when  the  matter  has  been  examined,  and  is  not  carried  into  court, 
declare  the  case  settled,  subject  always  to  the  decision  of  the 
Bishop  ('). 

Article  2.  Duty  of  the  parish  priest,  when  a  marriage  is  opposed 
on  the  ground  of  betrothment  contracted  with  a  third  person. 

I.  The  parish  priest  must  inquire  into  : 

Opposition  on      1.  The  fact  of  the  betrothment,  alleged  to  have  taken  place,  for 

the  ground  of 

betrothment.       j    Concerning  this  Pontifical  dispensation    see  also   Schmalzgrueber,  o.  c, 

n.  214 ;  GioviNE,  o.  c,  I,  consult.  Ill,  par.  61  ;  Feye,    De  Imped.,  n.  556  et  seq,  ; 

ScHERER,  o.  c,  par.  no,  not.  no;  Gasparri,  o.  c,  I,  n.  106-108;  Wernz,  o.  c, 

IV,  n.  118  ;  Anal,  eccles.,  1899,  p.  406  and  408. 
a.  The  Code  Napoleon,  as  we  have  already  observed,  ignores  the  existence  of 

betrothment,  and  allows  it  no  effect. 
3.  The  exercise  of  jurisdiction   in  cases  of  betrothment,  and  the  respective 

duties  of  the  Bishop  and  parish  priest,  are  treated  at  length  by  Banqen,  Instr.  I, 

p.  58-62,  65,  and  71-77  ;  and  more  concisely  by  Giovine,  o.  c,  I,  Consult.  XI, 

par.  187. 


THE  REGULATION   OF  BETROTHMENT  39 

instance, between  the  young  man  and  the  plaintiff;  and  its  validity. 

2.  He  must  see  if  it  has  been  lawfully  dissolved,  or  if  it  is  subject 
to  rescission  at  the  will  of  the  young  man. 

With  regard  to   1  :  The  parish  priest  must  not  at   once  give  1.  The  parish 

credence  to  the  plaintiffs  statement,  for  such  opposition  is  some-  examine  into 

times  the  outcome  of  ill-will  and  jealousy.  On  the  other  hand  he  '^  validity  of 
.     .  ...  .       .  the  alleged 

must  not,  without  prelimmar}'^  mvestigation,  dismiss  the  plaintiff,  betrothment. 

and  set  her  claim   aside,  since,   if  her  assertion  is  well  founded, 

she  is  quite  within  her  right. 

He  ought  to  receive  her  with  kindness  and  carefully  examine 
her  claim.  At  the  same  time  he  will  prudently  refrain  from 
mentioning  it  to  others,  so  as  to  avoid  giving  occasion  for  talk 
among  the  people,  ill-natured  comment,  or  disputes. 

The  examination  into  the  fact  of  the  betrothment  will  not  offer 
any  difficulty  if  it  has  taken  place  under  the  new  discipline,  and 
since  Easter  1908. But  the  difficulty  is  greater  when  it  is  a  question 
of  betrothment  ynade  before  that  date. 

In  this  case  the  parish  priest  will  make  it  his  business  to  learn 
from  the  lips  of  the  plaintiff  herself,  if  the  alleged  promise  of  mar- 
riage was  real  and  reciprocal  :  as  a  preliminary,  he  will  earnestly 
admonish  her  not  to  conceal  the  truth  (*).  Moreover,  he  will  take 
into  consideration  various  circumstances  that  may  help  to  clear 
the  matter  up.  He  will  ask,  for  instance,  if  the  couple  have  present- 
ed themselves  before  the  parish  priest  ;  if  they  have  already  taken 
a  house  ;  if  engagement  rings  have  been  given  and  received  ;  and 
so  forth  (»). 

If  after  all  the  matter  still  remains  in  doubt,  he  might,  perhaps, 
take  the  evidence  of  one  or  two  prudent  witnesses,  or  even,  if 
he  can  prudently  do  so,  that  of  the  young  man  himself. 

With  regard  to  2  :  When  once  the  validity  of  the  betrothment  attd  its  a4;tual 
has  been  established,  it  remains  to  be  seen  if  it  has  been  subse-  possible  disso- 
quently  dissolved,  either  by  mutual   renunciation,  or  by   some      lability. 
canonical  cause  ;  or  if  perchance  it  has  become  subject  to  rescis- 
sion at  the  will  of  the  man. 


1.  He  will  show  her  the  gravity  of  the  calumny,  which  may  give  rise  to  quarrels, 
loss,  and  scandal ;  and  will  tell  her  how  great  a  sin  it  would  be  to  hinder  the 
marriage  through  malice.  Cf.  Bangen,  Instr.pract.,1,  p.  71. 

2.  Cf.  Causa  Milevitana,  23  Dec.  1910,  in  Acta  A.S.,  III,  p.  70  ss. 


4©  THE  REGULATION  OF  BETROTHMENT 

34. 
2.  After         H.  After  the  investigation  : 

gation:  aj  in     A.  If  it  has  been  shown  that  there  was  fto  betrothment,  or  that  it 

caseof  nullity  ^^^   ^^^^H^   ^j^g  parish  priest  may  ignore  the  objection  to  the  mar- 

tion,asarule,  riage ;  and,  as  a   rule  (*),  proceed  on  his  own  authority  with  the 

priest  may    pubhcation  of  the  banns,  if  they  have  still  to  be  published,  and 

proceed  as  if  with  the  celebration  of  the  marriage. 
nothing  had  ^ 

happened]        The  same  holds  good  where  it  has  been /'rou^^  that  the  betroth- 
ment has  been  dissolved,  or  rendered  dissoluble  at  the  will  of  the 
man,  supposing,  of  course,  that  there  is  no  impediment  of  public 
decency  ('). 
bj  in  dmht  he     B.  If  after  examination  it  is  apparent  to  the  parish  priest  that 
^cmrse'lo  the  ^^^  betrothmetit,  or  its  validity,  or  its  dissolution,  or  its  dissolubility  is 
Ordinary ;    doubtful,  and  that   he  cannot  bring  about  an  amicable  arrange- 
ment, he  must  lay  the  case  before  the  Bishop,  and  meanwhile  sus- 
pend publication  of  the  banns  ('). 

As  we  have  already  seen,  the  Bishop  alone  is  judge  in  the  forum 
externum  ;  to  him  it  belongs  to  settle  difficulties  judicially,  and  to 
solve  those  doubts  that  come  within  its  scope,  while  the  parish 
priest  has  only  to  examine  the  case. 

It  is  necessary,  therefore  in  such  a  case  to  await  the  sentence 
or  declaration  of  the  Ordinary  (*).  It  he  pronounces  for  the  nullity 


i.We  say  :  as  a  rule  ;  because  a/  it  may  happen  that  one  ought  first  to  seek  the 
intervention  of  ecclesiastical  authority,  e.  g.  to  avoid  scandal,  «  in  a  case  where 
the  cause  of  the  rupture  is  not  public,  and  sufficiently  well  known,  and  the 
betrothment  is  commonly  regarded  as  valid  »  Santi,  in  1.  IV,  Deer.,  tit.  I,  n.  6g  ; 
b/  in  like  manner  the  parish  priest  could  not  proceed,  if  the  opposing  party  had 
had  recourse  to  the  Bishop,  and  had  obtained  an  inhibition. 

a.  In  the  case  in  which  a  betrothment,  originally  valid,  has  been  dissolved, 
or  has  become  rescindible  at  the  will  of  the  man,  there  will  still  be  a  marriage 
impediment  between  him  and  any  blood-relation  of  his  former  fiancee  in  the  first 
degree  ;  the  impediment  of  public  decency  remaining,  even  after  the  disso- 
lution of  the  betrothment,  it  is  clear  that  it  would  be  necessary  to  apply  first  for 
a  dispensation. 

3.  Council  of  Trent,  Sess.  XXIV,  ch.  30:  De  Reformatione. 

4.  The  Bishop,  in  giving  his  judgment,  will  be  guided  by  the  principles  of  the 
law,  viz.  a/  To  decide  in  favour  of  the  existence  of  the  betrothment,  he  must 
have  a  complete  proof,  to  the  exclusion  of  all  probable  doubt.  «  Ex  indubiis 
juris  principiis  cautum  est  quod  sponsalia,  veluti  indissolubile  matrimonii  vin- 
culum secum  ferentia  eoque  ipso  nativam  hominis  libertatem  adimentia,  adeo 
vehementes  et  omni  exceptione  majore  exigunt  probationes,  ut  si  hinc  inde  ali- 
qua  supersit  dubitatio,  sitomnino  contra  sponsalium  existentiam  judicandum  ». 


THE  REGULATION   OF  BETROTHMENT  4I 

of  the  betrothment,  or  for  its  dissolution,  then  what  we  have  said 
under  A.  will  be  applicable.  If,  however,  he  decides  that  the  plain- 
tiffs opposition  is  well  founded,  it  will  become  necessary  to  follow 
the  course  that  we  shall  indicate  under  C.  2. 

In  the  meantime  both  parties  are  free  to  appeal  from  the 
decision  of  the  Ordinary  to  the  Metropolitan,  or  even  to  the  Holy 
See.  Rome  has  frequently  to  decide  these  cases  on  appeal,  and  to 
confirm  or  quash  the  sentence  passed  by  the  episcopal  court. 

C.  If  on  the  other  hand  it  is  shown   that   the  betrothment  ivas  cl if  tJie parish 
contracted  validly  and  absolutely  ('),  and  that  it  has  not  been  dissolved,      that  the 
or  rendered  stibieci  to  rescission  at  the  will  of  the  man,  then,  without   betrothment 
reckonmg  the  diriment  impediment  of  public  decency,  he  is  faced  not  dissolved, 
by  an  impedient  impediment,  commonly  known  as  Nihil  transeat,     ^^^^ 
which  prevents   the  marriage  01  the    young  man  with  a  third 
person.  This  premised  : 

1 .  The  parish  priest  will  do  his  best  to  induce  the  man  to  keep  but  will  cause 

his  first  engagement,  and  marry  the  plaintiff.  If  he  is  met  with  a   ,„g„^  ^^  ^^ 

categorical   refusal,   or  if  he  has  reason  to  fear  that  the  mar- ^/'^.^''^''^J' 

hts  own 
riage  will  prove  disastrous,  he  will  endeavour  to  persuade  the    autlwrity, 

fiancee  to  renounce  her  right,  either  of  her  own  accord  and  gratuit- 
ously, or  in  consideration  of  a  promised  compensation.  This 
renunciation  would  at  once  dissolve  the  betrothment  by  mutual 
consent,  and  would  consequently  remove  the  marriage  impediment 
arising  from  it,  so  that  no  reason  would  remain  why  the  young 


S.  Rota  in  Causa  Brundusina  5  Apr.  1851,  in  the  R.  Th.  Fr.,  1901,  p.  479.  Cf., 
the  solution  of  the  case  of  33  May  1869,  in  A.  S.  S.,  V,  p.  77  ss.  ;  Bangen,  Instr. 
Pract.,  I,  p.  78 ;  Instr uctio  Austriaca,  n.  198  :  «  Praesumptio  stat  pro  libertate  in 
conjugis  electione ;  unde  contra  sponsalia  pronuntiandum  est,  quoties  de  eorun- 
dem  vaHditate  plene  non  constat  ». 

b/  To  decide  for  the  dissolution,  dissolution  is  not  presumed,  but  the  presence 
of  a  canonical  cause  of  dissolution  must  be  proved,  since  it  is  necessary' to  take 
into  account  not  only  what  favours  liberty,  but  also  the  right  acquired  by  the 
other  party.  But  for  the  different  causes  of  dissolution  the  proof  required  will 
not  be  always  the  same  :  «  For  if  the  cause  of  dissolution  of  the  betrothment 
consists  in  either  an  invalidating  or  a  prohibitive  impediment  of  marriage,  then 
there  is  a  spiritual  danger  at  stake, and  consequently  a  full  proof  is  not  required, 
but  half  a  proof  suffices.. .  but  if  there  is  question  of  a  cause  of  dissolution  which 
merely  gives  to  one  of  the  contracting  parties  the  faculty  of  breaking  his  (or  her) 
engagement,  then  a  full  proof  is  required  ».  Santi,  1.  c,  n.  67-68. 

I.  For  conditional  betrothment,  see  above,  n.  ii. 


42  THE  REGULATION  OF  BETROTHMENT 

man  should  not  marry  the  lady  of  his  choice;  if,  however,  she 

happened  to  be  a  blood-relation  of  his  former  fiancee  in  the  first 

degree,  it  would  be  necessary  to  obtain  first  a  dispensation   from 

the  impediment  of  public  decency  ('). 

or  by  tJiein-       2.  If  the  efforts  of  the  parish  priest  are  unsuccessful,  the  matter 
terventton  of 
the  Bishop,   should  be  laid  before  the  Bishop,  if  that  has  not  already  been 

done,  and  in  the  meantime   the  publication  of  the  banns  should  be 
suspended  and  the  marriage  deferred. 

The  Bishop  :  a/  if  he  judges  it  opportune,  may  compel  the  young 
man  to  marry  his  first  betrothed,  even  under  the  threat  of  a  cen- 
sure ;  but  he  cannot  have  recourse  to  that,until  he  has  exhausted 
ever}'  means  of  persuasion.  That  the  Bishop  has  this  right  is  clear 
from  ch.  io,X,  IV,  i('),  and  from  different  Roman  declarations  ('), 
and  it  is  affiraied  by  the  common  teaching  (*).  Nevetheless  the 
exercise  of  this  right  is  subject  to  certain  restrictions  in  practice. 
Thus  the  S.  C.  de  P.  F.,    22  Nov.   1760,  enjoins  that  women  (*) 


I.  The  Bishop  of  Bruges  in  virtue  of  quinquennial  faculties  from  the  S.  C.  de 
P,  F,,  has  power  to  dispense  «  from  the  impediment  of  public  decency,  arising 
from  lawful  betrothment  >. 

3.  In  this  chapter  Alexander  III  directs  a  bishop,  who  had  consulted  him  about 
a  man  who  had  unjustly  cancelled  his  betrothment :(«  quatenus,  si  hoc  constite- 
rit,  eum  moneas,  et,  si  non  acquieverit  monitis,  ecclesiasticis  censuris  compellas  ut 
ipsam  (nisi  rationabilis  causa  obstiterit)  in  uxorem  recipiat,  ct  maritali  affectione 
pertractet  ». 

3.  See  the  decree,  which  we  shall  presently  quote,  of  the  S.  C.  de  P.  F.  ;  the 
case  given  by  Bangen,  Instr.  pract.,  p.  105  ss.,  and  another  given  by  Rosset, 
o.  c,  t.  II,  p.  965. 

4.  ScHMALZCRUEBER,  in  1.  IV  Dcctet.  tit.  I,  n.  93  ss.,  with  the  authors  quoted ; 
Reiffbnstuel,  o.  c,  in  h.  1.,  n.  153  ss. ;  Bened.  XIV,  Instit.  eccl.,  46,  n.  15; 
GioviNE,  o.  c,  I,  p.  335 ;  Santi,  in  h.  1.,  n.  38  ss.  ;  Bangen,  Instr.  pract.  I,  p.  15  ; 
Aichner,  o.  c,  1905,  p.  580 ;  Scherer,  0.  c,  §  118,  notes  loi  and  103 ;  Wernz, 
o.  c,  t.  IV,  n.  TOO,  note  104  ;  Rosset,  1.  c.  ;  Gasparri,  o.  c,  t.  I,  n.  70 ;  De 
Angelis,  o.  c,  ni,  1.  I,  n.  5  ;  Lafourcade,  o.  c,  p.  160  ss. 

5.  «  Non  deest  autem  causa  propter  quam  mitius  in  feminam,  et  acrius  in 
masculum  animadvertatur.  Naturalis  omnino  imbecillitas  levitasque  muliebris 
non  longe  est  ut  despectum  censurarum  pariat ;  magisque  suspicari  licet  ne 
femina  a  fide,  quam  coacte  spopondit,  facilius  desciscat.  Caeteroquin  summum 
est  inter  virum  et  mulierem  in  hac  materia  discrimen,  ut  mulier,  si  a  sponsalibus 
declinet,  nullum  irroget  praejudicium  viro,  cui  altera  ad  nubendum  nimquam 
deficiet  femina  ;  sin  vero  a  sponso  mulier  relinquatur,  gravissimam  nominis 
subit  dimunitionem  ».  S.Rota  in  causa  Majoricen.  34  Apr.  1746,  apud  Giovine,  1.  c. 


THE   REGULATION   OF  BETROTHMENT  43 

who  withdraw  from  their  betrothment  should  never  be  excom- 
municated ;  that  even  men  should  be  dealt  with  in  this  matter 
with  great  circumspection,  and  that  censures  should  never  be 
employed  where  it  is  foreseen  that  lamentable  consequences  will 
ensue.  The  S.  Congregation  moreover,  requires  that  where  cen- 
sures are  inflicted,  they  should  be  removed  at  the  end  of  a  year  ('). 

"Whence  it  follows  that  though  we  cannot,  in  theory,  deny  that 
the  Church  has  the  power  to  compel  recalcitrant  fiances  to  marry, 
even  by  the  employment  of  censures,  yet  practically  speaking,  the 
fear  of  an  unfortunate  ending,  and  the  weakness  of  human  nature 
almost  always  stand  in  the  way  of  coercion  and  the  infliction  of 
canonical  penalties  (*). 

Ordinarily,  therefore,  the  Bishop  :   bj  will  endeavour  to  bring  wlw  will  try 
about  an  amicable  arrangement,  and  direct  all  his  efforts  to  induce     fiancee's 
the  fiancee  to  renounce  her  right,  and  the  young  man  to  pay  her  renunciation, 
an  equitable  compensation.  He   will  make  the  young  lady  under- 
stand how  imprudent  and  absurd  it  is  to  force  her  faithless  fiance 
to  marry  her,  and  what  an  unhappy  time  they  would  have  together 
as  man  and  wife. 

If  all  efforts  are  useless,  if  the  plaintiff  sticks  to  her  right,  and 
there  is  no  way  of  compelling  the  man  to  carry  out  his  engagement, 
then  it  only  remains 

3.  to  have   recourse  to  the  Holy   See   to  obtain  a  dispensation  or  ask  a  dis- 
from   the   impedient   impediment   arising  from  the  betrothment.  //j„„  Rome. 
Only  the  Pope,  as  we  have  seen,  has  the  power  to  grant  this 
dispensation. 


I.  Collectan.  S.  C.  de  P.  F.,  n.  1214;  Cf.  also  c.  17,  X,  IV,  i,  Requisivit,  in 
which  Lucius  III  says  of  a  woman  who  wished  to  break  her  betrothment,  that 
she  is  to  be  admonished  rather  than  compelled. 

a.  We  must  understand  thatc.  10, IV  Deer.,  i,  establishes  the  right,  while  c.17 
contains  rather  a  derogation  of  the  right,  a  derogation,  it  is  true,  that  takes 
effect  in  a  great  number  of  instances.  In  this  way  the  two  chapters  may  be 
reconciled.  On  this  subject  see  the  different  opinions  in  Rossbt,  o.  c,  n.  973  ; 
Santi,  1.  c,  n.  40;  Gasparri,  1.  c,  n.  70,  and  De  Angelis,  1,  c. 


APPENDIX 


THE  ANTENUPTIAL  PROCLAMATIONS. 

We  shall  treat  successively  of  i.  the  existence  of  the  law  con- 
cerning banns,  the  persons  affected  by  the  law,  and  its  binding 
force ;  2.  the  place,  the  number  of  times,  the  occasion,  and  the 
form  to  be  observed  in  the  publication  of  the  banns  ;  3.  the  causes 
that  remove  the  obligation  of  the  law  ;  and  4.  the  duty  of  making 
known  impediments  that  stand  in  the  way  of  a  marriage. 

I.  Existence  of  the  law,  persons  affected,  binding  force. 

A.  Existence. 
35. 
TIte  law  con-      Without  speaking  of  the  obligation  of  publishing  the  banns  ('), 

publication  that  formerly  prevailed  in  different  parts  owing  to  particular  laws 
or  local  customs  ('),  we  shall  content  ourselves  with  saying  that 
the  Church  has  established  a  universal  law  in  this  matter,  as 
follows  : 

1.  In  the  Fourth  Council  ofLateran  (1215),  ch.  3,X,IV,  3  :  «  Exten- 
ding the  special  custom  of  certain  places  (')  to  others  in  general, 


1.  Bannum  signifies  i.  jurisdiction  and  the  territory  of  jurisdiction  (bannum 
imperii) ;  3.  an  edict  issued  by  one  who  has  jurisdiction  (de  Dei  et  nostro  banno 
bannimusutnemo...);  3.  the  publication  of  an  edict  54.  a  penalty  for  the  trans- 
gression of  an  edict,  especially  forfeiture  of  goods  and  banishment.  Cf.  Kircken- 
lexikon,  under  Bannum. 

2.  Wernz,  o.  c,  IV,  n.  135;  Gasparri,  o.  c,  n.  149 ;  37,  X,  IV,  i,  in  the 
decree  of  Innocent  III,  1212. 

3.  Innocent  III  alludes  to  the  custom  of  the  Church  of  Gaul,  which  he  mentions 
27,  X,  IV,  I.  According  to  the  Ordines  given  by  Martene,  (o.  c,  1.  I,  p.  2^,  pp. 
627,  630,  637,  and  640)  already  from  ancient  times  it  was  the  custom  to  make  a 
threefold  publication  of  the  banns,  on  Sundays  or  festival  days  ;  and  even  on  the 
ver>'  day  of  the  marriage,  mention  being  made  of  the  completed  threefold  publi- 
cation, a.  fourth  v/?.s  added,  as  they  said  «  exabundantia*.  See  below,  n.  39. 


THE  ANTENUPTIAL  PROCLAMATIONS  45 

we  decree  that,  when  marriages  are  to  be  contracted,  they  be 
publicly  announced  by  the  priests  in  the  churches  ». 

2.  The  Council  of  Trent,  Sess.  XXIV,  ch.  i,  De  Refortnatione 
matrimonii :  «  Following  in  the  footsteps  of  the  Sacred  Council  of 
Lateran....  ordains  that  henceforth,  before  marriage  is  contracted, 
thrice  by  the  particular  parish  priest  of  the  contracting  parties, 
on  three  consecutive  festival  days,  in  the  church  and  during  the 
public  mass,  it  shall  be  publicly  announced  who  the  parties  are 
between  whom  marriage  is  to  be  contracted  ». 

The  discipline  introduced  by  the  Council  of  Trent  is  obligatory 
lor  all  parishes  in  which  the  decree  Tametsi  has  been  duly  promul- 
gated, at  least  so  far  as  this  provision  is  concerned.  Other  coun- 
tries remain  subject  to  the  discipline  of  the  Council  of  Lateran, 
and  to  the  precepts  of  the  particular  law  ('). 

The  end  that  the  Church  has  in  view,  is  to  make  the  marriage 
public  through  the  publication  of  the  banns,  and  above  all  to  dis- 
cover any  impediments  to  the  marriage,  whether  impedient  or 
diriment,  that  may  exist. 

B.  Persons  affected  by  this  law. 

The  obligation  of  seeing  that  the  antenuptial  proclamations  are     especially 
made  rests  upon  the  contracting  parties,  but  most  especially  upon  parish  priest 
their  own  particular  parish  priest,  whose   duty   it  is  to  publish  the    "/f'^^^'*" 
banns.  The  Council  of  Lateran  lays  this  duty  on  th&  priests,  that  is        tieSf 
to  say,  in  accordance  with  the  language  of  the  period,  the  particu- 
lar priests,  and  the  Council  of  Trent  expressly  designates  the 
particular  parish  priest  of  the  parties  about  to  marry.  Nevertheless 
there  is  no  reason  why   the  parish  priest   should  not  delegate 
another  person  for  this  purpose,  though,  except  in  case  of  neces- 
sity, it  is  not  becoming  that  this  person  should  be  a  laic,  or  a 
cleric  not  yet  sufficiently  advanced  to  preach. 

C.  Binding  force  of  the  law. 

The  publication  of  the  banns  is  not  necessary  for  the  validity  of  under  grave 
marriage,  but  only  for  its  lawfulness.  But  in  view  of  the  purpose         ^^"' 


I.  We  confine  ourselves  almost  entirely  to  the  Tridentine  law.  In  the  coming 
codification  this  will  probably  be  extended  to  the  entire  world  for  the  marriages 
of  catholics. 


46  THB  ANTENUPTIAL  PROCLAMATIONS 

of  the  law,  its  obligation  is  grave,  as  one  may  readily  infer  from 
the  severity  of  its  sanction.  ('). 

Observe  that  the  discipHne  concerning  these  proclamations  has 
this  pecuharity,  in  common  with  that  affecting  the  celebration  of 
marriage,  that,  in  accordance  with  the  wish  of  the  Council  of 
Trent,  Sess.  XXIV,  ch.  i,  in  addition  to  the  common  law,  the 
different  local  customs  that  prevail  in  many  places  are  to  be 
maintained  (*). 

II.  Place,  number  of  times,  occasion,  and  form 
OF  publication. 

36, 
The  banns        A.  Place  of  publication, 

publisJied :       The  publication  ought  to  be  made  : 

1.  in  the  pa-      1.  In  the  parish  in  which  each  of  the  parties  has  a  domicile  (') 
ofihelariiei  •  ^^  ^   Q^^si-dotnicile  {*).    For  vagi  (those   who  have  no  domicile 

1.  Namely  a/  a  secular  priest,  who  through  contempt  has  neglected  to  prohibit 
such  unions  (i.  e.,  those  forbidden  on  account  of  the  omission  of  the  banns),  or  a 
regular  who  has  presumed  to  assist  thereat,  is  to  be  suspended  from  his  oiiice  for 
three  years,  and  yet  more  severely  punished  if  the  nature  of  his  fault  requires 
it  (3,  X,  IV,  3).  This  penalty  takes  effect  only  after  sentence  has  been  pronounced 
(ferendae  sententiae) . 

b/  In  virtue  of  this  same  Lateran  decree,  if  the  engaged  parties  contract  mar- 
riage in  spite  of  the  omission  of  the  banns,  they  are  to  be  punished,  and  if  their 
marriage  is  null  through  some  diriment  impediment,  even  quite  unknown,  their 
offspring  will  be  illegitimate.  According  to  the  Council  of  Trent,  Sess.  XXIV, 
ch.  5,  Dc  reform,  tnatr.,  such  pseudo-married  people  are  to  be  separated,  without 
hope  of  obtaining  a  dispensation  later,  that  is  to  say,  they  will  not  get  one 
without  great  difficulty. 

c/  For  the  witnesses,  «  who  assist  at  such  marriages,  we  find  no  penalty 
imposed  either  by  the  Council  of  Lateran,  or  by  that  of  Trent ;  but  most 
diocesan  synods  have  thought  it  right  to  employ  even  against  them  the  penalty 
of  excommunication  latae  sententiae  (incurred  by  the  act  itself)  ».  Bened.  XIV, 
De  syn.  dioc.  t.  XII,  ch.  6,  n.  3. 

2.  Cf.  ESMEIN,  O.  C,  II,  p.  173  SS. 

3.  The  idea  of  domicile,  both  infactAxvA  in  law,  will  be  explained  later,  n.  72, 
where  we  speak  of  the  form  of  celebrating  marriage. 

4.  According  to  the  decree  Ne  temere,  and  the  decree  of  the  S.  C.  C,  of  28 
March  1908,  ad  V  (as  we  shall  say  in  n.  72),  there  is  no  longer  need  to  give 
attention  to  quasi-domicile  for  tht  licit  celebration  of  marriage  :  a  residence  of 
one  month  being  sufficient.  But  the  very  restriction  imposed  by  the  S.  Congr. 
shows  that  this  modification  of  the  law  is  not  general,  and  consequently,  pending 


THE  ANTENUPTIAL  PROCLAMATIONS  47 

or  quasi-domicile),  the  publication  takes  place  in  the  parish  in 
which  they  happen  to  be  actually  residing.  This  first  rule  follows 
from  the  purpose  of  the  law,  and  from  the  temis  employed  by 
the  Council  of  Trent,  which  enjoins  that  the  publication  of  the 
banns  should  be  made  by  the  particular  parish  priest  of  the  con- 
tracting parties. 

On  the  same  grounds  the  banns  of  those,  whose  domicile  or 
quasi-domicile  is  in  different  parishes,  must  be  published  in  their 
respective  parishes  (')  ;  and  if  one  or  the  other  has  two  domiciles,  or 
a  domicile  and  a  quasi-domicile,  then  the  publication  must  be 
made  in  all  these  different  places. 

It  sometimes  happens  that  strict  observance  of  the  law  would 
lead  to  utterly  useless  publication.  In  such  a  case  we  cannot  say 
that  the  law  lapses,  as  we  shall  show  later,  but  there  is  then  good 
reason  to  ask  for  a  dispensation,  or  for  the  Bishop  to  make  some 
special  provision.  It  happens  thus,  for  example,  when  the  engaged 
parties  have  very  recently  acquired  a  new  domicile  or  quasi-domi- 
cile ;  or  when  their  legal  domicile  is  a  place  where  they  are  quite 
unknown  and  have  never  resided  ;  the  same  may  be  said  with 
regard  to  vagi  who  make  a  merely  momentaiy  stay  in  a  place. 

2.  In  the  parish  that  the  engaged  parties  have  lately  left. 

According  to  the  strict  letter  of  the  Tridentine  law  there  is  no  i.in  the  par- 
need  to  publish  the  banns  in  a  parish  the  parties  have  recently  •^'^' 

left ;  but  taking  into  account  the  purpose  of  the  law  and  the  desire 
of  the  Holy  See  (*),  there  is  reason  to  do  so,  at  least  in  the  case  of 
a  recent  departure.  Local  legislation  in  a  number  of  dioceses  has 
wisely  decreed  that  this  should  be  done,  and  such  a  course  is,  as 


a  more  ample  extension,  we  think  that  it  is  necessary  to  maintain,  in  the  matter 
of  the  banns,  the  former  discipline,  according  to  which  the  particular  parish 
priest  is  the  parish  priest  of  the  domicile  or  quasi,  domicile,  in  the  proper  accep- 
tation of  the  term.  See  in  this  sense  iV.  R.  Th.  ,  igog,  p.  178;  Rev.  du  clergefr., 
t.  LVII,  p.  353  ;  Van  den  Acker,  o.  c,  p.  44  ;  Schaepman,  Ned.  Kath.  Stemmen, 
1910,  p.  135  ;  SaGMuLLER,  in  Theol.  Quartalschrift,  1910,  p.  644  ;  Besson, 
N.  R.  th.,  1911,  p.  263  s.  ;  Knoch,  Rev.  eccles.  de  Liege,  t.  VII  (1911),  p.  7  ;  and  in 
a  contrary-  sense  the  Collat.  Gandav.,  I,  p.  75  and  II,  p.  191. 

1.  Cf.  Rit.  Rom.,  tit.  VII,  ch.  I,  n.  8. 

2.  See  the  replies  and  solutions  of  the  S.  C.  C.  (R.  th.  /r.,  1901,  p.  T17  s.) 
given  by  the  Consultor  in  the  causa  Colon.;  cf.  also  the /ns/r.  of  the  C.  S.  O., 
22  Aug.  1890. 


48  THE  ANTENUPTIAL  PROCLAMATIONS 

we  have  seen,  in  accord    with    the  wishes  of  the   Council  of 
Trent  ('). 
3.  in  other       3.  And  in  some  other  parishes,  as  circumstances  may  require  ;  but 
cMws<a«c^T  especially  in  the  place  of  origin,  if  the  contracting  parties  have 
may  require,  resided  there  for  a  considerable  time  after  attaining  a  marriagea- 
ble age.  The  same  should  be  done  in  the  case  oivagi,  or  those  who 
lie  under  any  suspicion  of  impediment.  This  is  evident  trom  the 
object  of  the  law,  and  from  the  Instruction  of  the  C.  S.  O.,  quoted 
in  note. 
Publication      Lastly  the  publication  of  the  banns  should  be  made  in  the  church, 
made  in  the  ^^  expressly  ordained  by  the  Councils  of  Trent  and  Lateran.  By 
parish       the  church  is  understood  the  parish  church,  since  the  publication 
is  to  be  made  by  the  particular  parish  priest  of  the  engaged  parties. 
For  the  purposes  of  this  law  we   can  consider,  as  on  the  same 
footing  as  a  parish  church,  a  quasi-parish  church,  or  chapel  of 
ease,  that  has  a  district  so  distinct  from  that  of  the  m.other-church, 
that  residents  of  the  one  district  are  unknown  to  those  of  the 
other  (*). 

Though  as  a  general  rule  the  publication  of  the  banns  should 
be  made  in  the  parish  (or  quasi-parish)  church,  there  is  no  reason 
why  it  should  not  at  times  take  place  in  some  other  church,  or 
even  in  some  sanctuar}',  where,  on  the  occasion  of  a  special  feast, 
mass  is  celebrated  in  the  presence  of  a  great  concourse  of  people  ; 
for,  having  regard  to  the  object  of  the  law,  and  the  clause  inter 
missarum  solemnia,  it  would  seem  that  the  presence  of  the  people  is 
of  even  greater  importance  than  the  place  itself. 
Whcntlicpar-     Note.  When  the  engaged  parties  belong  to  different  parishes,  the 


1.  «  The  publication  ought  to  be  made  in  the  place  of  domicile  or  quasi-domi- 
cile.  It  is  also  expedient  that  it  should  be  made  in  the  place  of  origin,  if  the 
contracting  parties  have  resided  there  after  having  attained  the  age  required  for 
marriage,  and  even  in  other  places  where  they  have  dwelt  for  at  least  ten 
months,  unless  they  have  a  fixed  abode  of  several  years  in  the  place  where  the 
marriage  is  to  take  place  ».  Instr.  of  the  C.  S.  O.,  32  Aug.  1890,  in  the  Collectanea, 
n.  1376,  a.  13. 

2.  This  is  set  forth  in  the  Causa  Coloniensis,  already  referred  to,  where  the 
S.  C.  C.  gave  the  following  solution :  «  Attentis  peculiaribus  circumstantiis  in 
casu  occurrentibus,  publicationes  matrimoniorum  in  ecclesiis  filialibus  posse 
sufficere».  The  R.  ih.fr.  1901,  p.  135,  gives  the  remarkable  Votum  of  the  Con- 
suitor. 


THE  ANTENUPTIAL  PROCLAMATIONS  4$ 

respective  parish  priests  cannot  proceed  to  publish  the  banns  ties  belong  to 
until  they  have  mutually  received  notification  of  the  absence  of  parishes. 
any  known  impediment  (*).  In  other  words,  the  parish  priest  of 
the  man  will  inform  the  parish  priest  oi  the  fiancee,  before  whom 
the  marriage  is  to  be  celebrated,  that  his  parishioner  is  free  from 
impediment  (*).  On  receipt  of  this  notice,  the  parish  priest  of  the 
fiancee,  after  having  duly  examined  her,  and  found  her  likewise 
free,  will  invite  his  colleague  to  publish  the  banns,  (^)  and  will 
proceed  to  do  the  same  himself. 

B.  Number  of  times  of  publication . 

57. 

1.  In  the  parish  of  domicile    or  quasi-domicile,   or  of  actual    Number  of 

residence  in  the  case  of  vagi,  the  banns   must  be  published  three  ^"^cation-  * 
times.  This  is  expressly  ordered  by  the  Council  of  Trent. 

2.  In  a  parish  that  has  recently  been  left,  one  must  comply 
with  the  provisions  of  the  local  law  (*). 

3.  In  the  place  of  origin,  or  in  other  places,  where,  apart  from 
the  provisions  or  the  law,  it  is  considered  desirable  to  publish 
the  banns,  the  number  of  the  publications  rests  with  the  Ordin- 
ary or  the  parish  priest,  according  as  one  or  the  other  has  taken 
the  matter  in  hand. 

4.  With  regard  to  the  repetition  of  the  banns,  we  read  in  the    when,  and 
Rituale  Romanum,  1.  c,   n.  ii  :  «  If  the  marriage  does  not  take  l°^^J°/^yf\l 
place  within  two  months  after  the  publication  of  the  banns,  they    be  repeated. 
must  be  repeated,  unless  the  Bishop  decides  otherwise  (*).  » 


I.  Cf.  Liber  manualis,  p.  189,  where  we  find  :  «  Quod  quidem  parochi  testimo- 
nium, si  sit  ex  aliena  dioecesi,  ab  ipsius  Ordinario  recognitum  sit  oportet,  nisi 
aliunde  sit  notum  ». 

3.  A  note  in  this  or  some  similar  form  would  suffice  :  «  Revde  Dne  Pastor.  ~- 
Tuto  denuntiari  potest,  quantum  ad  me  special,  matrimonium  N.  N.parochiani  tnei 
cum  N.  N.  una  ex  tuts  ». 

3.  This  is  the  formula  :  «  Revde  Dne  Pastor,  —  Digneris  matrimonium  N.  N. 
parochianitui  cum  N.N.  parochiana  meu,  ad  tramites  juris,  publice  proclamare  et 
rescribenda  rescribere  *. 

4.  In  the  diocese  of  Bruges  publication  is  to  be  made  once  in  a  place  left  within 
the  preceding  six  months. 

5.  According  to  the  Statuta  dioec.  Brug.,  «  ubi  proclamationes  antenuptiales 
antiquiores  fuerint  tribus  mensibus,  novae  proclamationes  semel  fieri  debebunt...; 
si  antiquiores  an7io  fuerint,  ter  fieri  dcbent  ». 

4 


50  THE  ANTENUPTIAL  PROCLAMATIONS 

Note.  The  Council  of  Lateran  did  not  determine  how  many 
times  the  banns  are  to  be  published,  and  so  strictly  speaking, 
one  publication  is  enough.  Accordingly  a  single  publication  satis- 
fies the  law  in  those  places  that  are  subject  to  the  Lateran  disci- 
pline only,  unless,  of  course,  more  is  required  by  special  local 
legislation. 

„„  C.  The  occasion  for  publishing  the  banns. 

publication  is      Publication  must  be  made  on  three  consecutive  festival  days.  By 
thrce"'^st:ml  A^^^"^^^  ^^y^  ^^^  ^^  ^^  understood  properly  days   of  obligation  : 
dciys,       nevertheless  the  abrogated  days  of  obligation  can  also  be  counted 
as  such,   at  least  with  the  approval  of  the  Bishop,   and  if  the 
church  is  not  left  without  a  concourse  of  people  on  those  days  (*). 
At  the  same  time  it  will  not  suffice  to  make  pretext  of  the  assem- 
bly of  people  in   order  to  enable  the  banns  to  be  published  on  an 
ordinary  weekday,  without  the  permission  of  the  Bishop  ;  but  on 
the  other  hand  publication  is  not  forbidden   during   Advent  and 
Lent,  unless  expressly  prohibited  by  the  local  law. 
that  are  con-     We  say  :  three  consecutive  itstiwaX  days,  i.  e.,  without  interrup- 
sscu  tvc,     ^JQj^^  omitting  days  that  are  not  holidays.  It  would  be  quite  lawful 
to  publish  the  banns  thus,  even  when  the  three  days  followed 
immediately  one  after  the  other,  as,  in  some  cases,  when  Christmas 
Days  falls  on  a  Monday  or  Friday.  Nevertheless  such  rapid  proce- 
dure would  seem  to  be  more   conformable  to  the  letter  than  to 
the  spirit  of  the  law. 
during  pub-      Finally  the  publication  ought  to  be  made  during  the  high  mass, 
Itcmass.     that  is  to  say,  during  the  parochial  or  conventual  mass.  Out  of 
this   time,   publication   must  not  be  made,  notwithstanding  the 
concourse  of  people,  whether  at  vespers,  or  on  the  occasion  ol  a 
sennon,  unless  there  is  some  urgent  necessity  ('),  or  the  consent 
of  the  Bishop  has  been  obtained  ("'). 


I.  Gasparri,  o.  c,  n.  i66  s.;  Feye,  De  Imp.,  n.  340345.  In  the  diocese  of 
Bruges,  the  Statuta  p.  144,  lay  down  :  «  Diebus  quibus,  juxta  Pastoi'ale  Bru- 
gense  {"•'•),  proclamationes  faciendae  sunt,  addere  jam  licet  festa  abrogata, 
mode  in  illis  diebus  sufficiens  detur  populi  ad  ecclesiam  concursus  ». 

3.  For  example,  if  the  banns  have  been  omitted  at  mass,  and  the  marriage 
cannot  be  deferred. 

3.  See  the  decree  oftheS.  C.  O.,  35  Oct.  1850,   in  Gasparri,   o.  c,   n.  170. 


(♦)  According  to  the  Pastorale  it  was  necessary  to  make  publication  ton  Sundays  or  days   of 
obligation.  • 


observed. 


THE  ANTENUPTIAL  PROCLAMATIONS  5I 

D.  Form  to  be  observed. 

39. 

The  approaching  marriage  must  be  announced  in  the  verna-   Form  to  be 

cular,  and  in  a  loud  and  intelligible  voice  (*) ;  it  is  necessary  to 
declare  the  surname  and  christian  name  of  each  of  the  engaged 
parties,  to  indicate  their  place  of  origin  and  residence,  their 
condition  whether  of  celibacy  or  widowhood,  and  to  add  in  the 
latter  case  the  name  of  the  former  husband  or  wife.  It  is  necessary 
also  to  mention  any  dispensation  from  public  inpediments  that 
has  been  obtained,  and  to  state  precisely  on  each  occasion  whether 
it  is  the  first,  second,  or  third  time  of  publication.  Finally  the 
faithful  are  to  be  reminded  of  the  obligation  they  are  under  to 
make  known  any  impediments  that  they  may  know  of.  Nothing, 
however,  that  might  bring  disgrace  on  the  engaged  parties  must 
be  published  (*). 


This  consent  is  given,  for  the  diocese  of  Bruges,  in  the  Pastorale  Brugense,  p. 
132  :  «  Before  celebrating  marriage...  the  banns  must  be  published  at  the 
principal  mass,  or  at  the  sermon,  or  at  some  gathering  of  the  people  ». 

I.  In  1908  an  indult  was  granted  to  the  Archbishop  of  Paris,  «  in  virtue  of 
which  he  is  for  the  future  permitted,  in  parishes  of  his  diocese  that  have  ten 
tliousand  armor e  par ishiotters,  to  satisfy  the  Tridentine  law  (relating  to  the  banns) 
by  affixing  in  a  conspicuous  place  in  the  church,  during  three  consecutive  holidays, 
written  forms  announcing  the  coming  marriages  ;  these  forms  are  to  remain 
affixed  during  the  whole  day,  from  the  first  mass  in  the  morning  until  the  last 
liturgical  service  in  the  evening  ».  Collat.  Brug.,  t.  XIII,  p.  471  s. 

3.  The  following  is  a  specimen  of  publication  according  to  the  formula  of  the 
ancient  ritual  of  the  church  oi  Limoges  :  c  N.  N.  fils  de  N.,  de  tel  lieu  et  N.  N. 
fille  de  tel,  demeurant  en  tel  lieu  et  paroisse,  se  veulent  prendre  et  assembler 
par  loyal  manage,  s'il  y  a  aucun  ny  aucune  qui  S9ache  entr'eux  lignage, 
affinity,  ny  empechement,  par  quoi  le  mariage  ne  doive  se  faire,  s'il  le  dit  sur 
peine  d'excommuniement  avant  qu'on  procede  plus  avant.  C'est  pour  le  premier 
banc,  ou  pour  Ic  second  ou  pour  le  tiers  ». 

Afterwards,  on  the  day  of  the  marriage,  before  the  ceremony,  a  fourth  publi- 
cation was  made,  prescribed  as  a  superaddition  :  «  Nous  avons  proclam6  en 
I'eglise  de  c6ans  trois  bancs  solennellement  par  trois  jours  solennels,  pour  le 
mariage  que  N...ici  presens,  entcndant  a  contracter  et  faire  ensemble  d  I'hon- 
neur  de  Dieu  et  de  la  Vierge  Marie,  auquel  nul  n'a  contredit.  Derechef  nous 
proclamons  le  quatrieme  banc  d'abondance,  en  faisant  commandement  s'il  y  a 
aucun  qui  S9ache  nul  empechement  legitime...  s'il  le  dit  sur  peine  d'excommuni- 
cation,  ou  autrement  nous  declarons  excommuniez  tous  ceux  qui  malicieusement 
nous  voudront  caicher  feaux  troublemens  et  empechemens  ».  MARTfeNE,  o.  c, 
h.  I,  p.  2,  p.  640. 


servation. 


52  THE  ANTENUPTIAL  PROCLAMATIONS 

40. 

Praticalob-      Note.  1.  «  It  is  generally  admitted  that  the  parish  priest  may 

receive  for  the  publication  of  the  banns  some  slight  remuneration 
from  the  engaged  parties  (')  ».  In  this  matter  parish  priests  ought 
to  conform  themselves  to  the  existing  custom  and  local  decrees  (*). 

2.  Should  there  be  an  impediment,  one  cannot  proceed  to  the 
publication  of  the  banns  until  the  requisite  dispensation  has  been 
obtained  ;  and  if  the  impediment  does  not  come  to  light  before 
the  publication  has  begun,  it  is  necessary  to  suspend  publication 
for  the  time  being  ('). 

3.  When  the  publication  of  the  banns  has  been  duly  completed 
and  no  impediment  has  presented  itself,  one  can  proceed  to  the 
celebration  of  the  marriage  (*).  But  if  the  engaged  parties  belong 
to  different  parishes,  the  parish  priest  of  the  bridegroom  should 
first  inform  the  parish  priest  of  the  bride  that  there  is  no  imped- 
iment (*). 


1.  Gasparri,  o.  c,  n.  159. 

2.  In  tlie  diocese  of  Bruges  it  is  provided  that  honoraria  cannot  be  demanded 
for  the  repetition  of  the  banns,  when  this  is  made  once,  i.  e.,  when  the  previous 
publication  was  made  more  than  three  months  and  less  than  a  year  ago  ;  but  if 
the  previous  publication  was  a  year  ago,  the  usual  honoraria  may  be  demanded 
for  the  fresh  banns.  —  «  When  the  banns  are  published  in  a  parish  in  which  the 
engaged  parties  do  not  reside,  the  parish  priest  cannot  demand,  on  account  of 
this  publication  and  the  due  notification  of  it,  m.ore  than  a  franc  and  a  half ; 
and  from  the  poor  nothing  at  all  is  to  be  demanded  ».  Stat,  dioec.  Brug., 
p.  143  ss.,  where  is  added:  «  Owing  to  this  provision  the  poor  will  more 
readily  consent  to  the  additional  publication  of  their  banns  in  a  parish  in  which 
they  are  not  actually  residing  at  the  time  ». 

3.  «  As  often  as  a  dispensation  from  Rome  is  required,  the  parish  priests  will 
see  that  the  engaged  parties  do  not  present  themselves  for  the  civil  ceremony 
before  the  dispensation  has  been  granted.  They  must  also  defer  the  publication 
of  the  banns  ».  Lib.  man.,  p.  190. 

4.  The  local  decrees  of  the  diocese  of  Bruges  require,  «  that  there  should  be  at 
least  one  intermediate  day  between  the  last  publication  of  the  banns  and  the 
celebration  of  the  mariage ;  except  in  the  case  of  workmen  and  the  poor,  who 
may  be  married  on  the  Monday  following  the  third  publication.  Deans  have  the 
power  to  dispense  the  rich  from  the  obligation  of  the  intermediate  day...  when 
necessary  or  expedient,  provided  a  dispensation  from  two  publications  of  the 
banns  has  not  been  given  ».  Cf.  Pastorale  Brug.,  p.  122,  and  Stat,  dioec.  Brug., 
p.  67.  Note  that  the  usage  of  the  intermediate  day  is  met  with  in  the  ancient 
Ordines.  See  Martene,  o.  c,  L.  I,  p.  3*,  p.  637  and  6^10. 

5.  The  following  form  might  be  used  :  «  N.  N,  parochianus  meus  et  N.  N. 
parochiana  tua  in  ecclesia  mea  ter  (vel  semcl  aut  bis,  cum  dispensatione  in  3°  et 


THE  ANTENUPTIAL  PROCLAMATIONS 


53 


III.  Causes  that  remove  the  obligation  of  publishing 

THE  BANNS. 

A.  The  parish  priest  is  not  authorised  to  omit  publication  : 

1.  In  the  case  in  which  it  is  useless,  whether  this  arises  from 
the  fact  that  the  contracting  parties  are  unknown  in  the  parish 
in  which  the  law  requires  that  their  banns  should  be  published 
(as  in  the  different  cases  enumerated  in  n.  36,  and  for  which  we 
have  said  a  dispensation  should  be  sought),  or  because  there  is 
no  suspicion  of  impediment.  The  reason  is  that  the  law  in  question 
is  founded  not  on  a  presumption  of  the  fact,  but  on  a  presumption 
of  universal  danger. 

2.  Nor  because  the  civil  publication  has  already  been  made.  The 
C.  S.  O.  expressly  says  this  in  its  decree  of  12  Jan.  1881  (*)  ; 
moreover  it  is  clear  from  the  wording  of  the  Lateran  and  Triden- 
tine  decree  that  the  law  requires  that  publication  of  the  banns 
should  be  made  in  the  church  ;  in  addition  to  this  the  civil  law 
ignores  many  impediments  that  are  recognised  by  canon  law. 

B.  Among  the  causes  that  remove  the  obligation  of  the  law, 
whether  in  virtue  of  a  legal  provision,  or  by  custom,  are  reckon- 
ed : 

1 .  The  case  of  urgent  necessity  that  demands  the  immediate  cele- 
bration of  the  marriage  without  leaving  time  for  the  publication 
of  the  banns  or  for  recourse  to  the  Bishop.  In  such  a  case  the 
parish  priest  can  omit  the  banns,  and  assist  at  the  marriage,  at 
least  ex  epikeia.  But  this  urgent  necessity  will  hardly  ever  arise 
except  at  the  death  bed  of  a  man  living  in  concubinage  whose 
position  requires  putting  in  order  by  marriage. 

If  the  sick  man  afterwards  recovers,  the  matter  must  be  laid 
before  the  Bishop,  who,  according  as  he  thinks  fit,  will  either 
keep  to  the  rules  laid  down  by  the  Council  of  Trent,  1.  c,  and 
order  the  proclamation  of  the  banns  before  the  consumma- 
tion of  the  marriage  (*),  or  simply  give  a  dispensation,  assum- 


4/. 

Usdcssness 
docs  not 
excuse. 


nor  the  civil 
publication. 


On  tlie  otiter 

liand  we  must 

admit : 


1.  urgent 

necessity  ; 


in  30,  aut  in  3°  banno)  proclamati  sunt,  et  nullum  innotuit  impedimentum.  Quare 
ad  eorum  matrimonium,  quantum  ad  me  attinet,  tuto  procedi  potest  ». 

1.  Collectanea  of  the  S.  C.  de  P.  F.,  n.  1224. 

2.  This  clause  of  the  Council  of  Trent,  enjoining  in  such  a  case  the  publication 
of  the  banns  before  the  consummation  of  the  marriage,  is  not  in  accord  with  the 
actual  conditions  of  life  at  the  present  day. 


54  THE  ANTENUPTIAL  PROCLAMATIONS 

ing   that  the  absence  of  impediment  is   sufficiently  assured  ('). 
2.  marriage       2.  The  case  of  great  princes  (*), 

3  mixcdmar-     3.  The  case  of  a  mixed  marriage,  or  marriage  between  a  catho- 
riage ;      lie  and  a  non-catholic. 

As  we  shall  point  out  later  on,  the  antenuptial  proclamations 

are  reckoned  among  the   ecclesiastical  rites,  which  are  not  to  be 

employed  in  the   celebration  of  mixed  marriages.  Nevertheless, 

according  to  circumstances,   the  publication  of  the  banns  may  be 

permitted  in  the  case  of  such  marriages,  but  without  any  mention 

of  religion  ('). 

4.  Dispensation. 

4.  dispcnsa-      The  authority  in  the  matter  of  dispensation,  in  accordance  with 

'^"'        the  provisions  of  the  Council  of  Trent,  1.  c,  is  the  Ordinary,  and  he 

can  exercise  this  power  either  by  himself  or  through  a  delegate(*). 

to  be  asked  for     Tho,  parish  priest  of  the  bride  must  apply  for  the  dispensation, 

prustof bride,  when  needed ;  and  it  is  also  his  business  to  inform  the  parish 

priest  of  the  bridegroom  that  a  dispensation  has  been  obtained, 

when  he  asks  him  to  publish  the  banns,  so  that  he  may  take  note 

of  the  fact  in  making  publication. 


I.  The  Council  of  Trent,  1.  c,  makes  the  following  concession  :«  If  there  is 
reason  to  fear  that  the  marriage  may  be  maliciously  opposed,  if  such  a  full  publi- 
cation is  made,  then  a  single  publication  may  suffice,  or  the  marriage  may  be 
celebrated  (without  the  banns)  in  the  presence  of  the  parish  priest  and  two  or 
three  witnesses  >,  but  with  this  provision  that  the  banns  shall  be  published  after- 
wards, before  the  consummation  of  the  marriage,  unless  the  Bishop  thinks  it 
right  to  omit  them.  But  under  such  circumstances  there  is  usually  time  for 
recourse  to  the  Bishop,  and  it  is  better  to  take  that  course  at  first,  so  that  he 
may  dispense,  if  needful, 

3.  Gasparri,  o.  c.,n.  154;  Wernz,  o.  c,  n.  136,  note  17;  Bassibey,  D« /a 
Cland.  n.  304. 

3.  Cf.  CoUat.  Brug.,  t.  XII,  p.  333  and  335,  note  ;  see  also  in  A^.  R.  th.,  XV, 
p.  589-593,  the  decisions  of  the  Holy  See  in  this  matter,  as  well  as  the  decree 
quoted  by  the  Collectanea,  n.  1333. 

In  England  the  Bishops  are  empowered  to  permit  the  banns  in  the  case  of  a 
mixed  marriage,  and  such  is  the  general  practise  there.  Cf.  Acta  S.  Sedis,  t.  VI, 
p.  456. 

4.  In  the  diocese  of  Bruges  the  Deans  are  delegated,  and  have  faculties  to  dis- 
pense, for  canonical  reasons,  and  in  the  accustomed  form,  the  faithful  of  their 
respective  districts  from  one  or  two  publications  of  the  banns.  Stat,  dicec.  Brug., 
p.  67.  On  the  following  page  we  find  that  the  fee  for  these  dispensations  is  two 
francs  and  a  half  for  each  publication. 


THE  ANTENUPTIAL  PROCLAMATIONS  55 

If  the   engaged   parties  belong  to  different  dioceses,    it  would,  and  given  by 
strictly  speaking,  be  necessary  to  seek  a  dispensation  from  each    '^e^lla^e 

of  their  respective  Bishops,  but  in  many  places,  in  virtue  of  an     ^^'■^retlie 

■  1-1  •^^^^  i       i-  •         marriage  ts 

express  or  tacit  understandmg  between  Bishops,  the  dispensation    celebrated ; 

of  one  only  is  sufficient.  In  practice,  therefore,  the  dispensation  is 
asked  for  from  the  Bishop  in  whose  diocese  the  marriage  is  to 
take  place,  and  the  other  Bishop  is  requested  to  testify  the  free 
state,  that  is  to  say,  the  freedom  from  impediment  of  his  sub- 
ject (•). 

There  must  be  a  legitimate  cause  for  granting  a  dispensation,   there  must  be 
Benedict  XIV  insists  on  this  in  his  admonition  to  the  Bishops  that  ctusffor'dt- 
«  they  have  no  power  to  dispense  instantly  and  indiscriminately,    pensation, 
but  only  to  act  in  the  matter  with  prudence  and  for  legitimate 
reasons  (')  ». 

With  regard  to  the  gravity  of  the  cause,  a  graver  reason  is  cer- 
tainly required  for  dispensing  from  the  three  banns,  than  from 
one  or  two  ;  but  Bishops  must  not  be  too  easy  (')  in  dispensing 
even  from  one  or  two  publications,  and  the  mere  wish  of  the  con- 
tracting parties  can  never  be  considered  as  a  cause  (*). 


I.  The  arguments  for  and  against  this  practice  will  be  found  in  the  ^V.  R.  th.,  I, 
p.  452  ss.  Cf.  also  Wernz,  o.  c,  IV,  n.  143,  note  44  ;  Feye,  De  Imp.,  n.  266  ; 
Gasparri,  o.  c,  n.  183 ;  De  Becker,  De  Matr.,  p.  252. 

If  the  engaged  parlies  belong  to  different  deaneries,  the  dispensation  of  the  dean 
of  the  bride  is  sufficient,  according  to  Stat,  dioec.  Brug.,  p.  68. 

3.  Constit.  of  18  May  1743  :  Nimiam  Licentiam,  §  13. 

3.  Benedict  XIV,  1.  c,  §  15,  deals  very  severely  with  the  abuse  of  excessive 
indulgence  :  «  Nee  obtcntu,  praetextu,  aut  colore  cujuscunque  consuetudinis  et 
usus  hactenus  quomodolibet  invecti,...  ea,  quae  ad  haec  usque  tempora,  super 
denuntiationibus  sine  legitima  causa  dispensandi,  versa  est  in  fastidium  et  tot 
litium  fomitem,  facilitate  deinceps  abuti  audeatis  ;  perniciosa  enim  consuetudo  et 
auctoritatis  abusus,  non  ad  normam  agendi  sed  ad  male  actorum  exprobrationem 
confert  ».  This  need  of  a  canonical  cause  is  also  urged  by  the  Bishop  of  Passau 
in  a  recent  decree,  given  by  the  Arch.  f.  k.  Kirchenr.,  1909,  p.  739  s.  ;  and  by  the 
Bishop  of  Bruges,  in  the  prosynodal  congregation  of  1910  (Cf.  Coll.  Brug.,t.  XV, 

P-  337)- 

4.  Often  the  contracting  parties  have  no  other  reason  for  seeking  a  dispensa- 
tion than  the  desire  to  imitate,  out  of  mere  vanity,  the  rich  and  noble,  in  favour 
of  whom  a  dispensation  from  the  banns  is  commonly  given  in  part.  Experience 
shows  that  if  those  in  a  high  social  position  were  content  to  have  their  banns 
published  in  accordance  with  the  ordinary  law  of  the  Church,  this  craving  for 
unjustifiable  dispensations  would  quickly  disappear. 


56  THE  ANTENUPTIAL  PROCLAMATIONS 

whether  total,  A  dispensation  can  be  given  for  the  following  causes  :  a/  from  all 
three  banns  :  in  case  of  urgent  necessity  for  immediate  marriage  ; 
as,  for  example,  when  the  parties  are  on  the  point  of  starting 
for  a  foreign  country',  on  the  supposition  that  there  is  time  for 
recourse  to  the  Bishop.  So  in  like  manner,  when  it  is  a  question 
of  contracting  a  marriage  of  conscience  ;  or  again,  though  this 
is  of  rare  occurrence,  when  there  is  good  reason  to  fear  that  if  the 
banns  are  published,  the  marriage  will  be  hindered  by  the  machin- 
ations of  an  opponent.  Finally,  as  we  have  seen  above,  the  abso- 
lute uselessness  of  the  publications  required  by  the  letter  of  the 
law,  in  the  case  of  parties  altogether  unknown  in  the  parish,  may 
sometimes  be  a  sufficient  cause  for  dispensation. 
or  partial.  b/  For  a  dispensation/row  one  or  two  of  the  banns,  any  legitimate 
reason  for  hastening  on  the  marriage,  such  as  the  fear  of  scandal 
owing  to  an  advanced  state  of  pregnancy,  the  danger  of  inconti- 
nence, a  well  founded  suspicion  that  the  parents  will  withdraw 
their  consent,  the  approach  ot  the  prohibited  time,  etc.,  is  suffi- 
cient. Yet  another  sufficient  cause  would  be  the  desire  to  avoid 
exposing  parties  of  an  altogether  unequal  age  or  condition  to  pro- 
longed public  derision,  and  in  like  manner,  the  fear  of  occasioning 
the  parties  acute  disappointment  by  a  refusal  of  a  dispensation, 
provided  it  is  morally  certain,  on  other  grounds,  that  there  is  no 
impediment  to  the  marriage.  Finally,  it  is  generally  admitted  that 
noble  birth  of  the  contracting  parties,  or  the  special  merit  of  one 
of  them  justifies  a  like  favour  ('). 

IV.  The  obligation  of  revealing  impediments. 

44 
The  obiigati-     We  begin  by  remarking  that  in  this  connection  we  are  consi- 

on  of  ''^^"?^  dering  before  all  those  impediments  that  are  of  their  nature  occult, 
ments  is      taking  it  for  granted  that  public  impediments,  from  their  very 
grave,       nature,  generally  come  to  light  without  any  difficulty,  since  they 
entail  no  disgrace,  and  are  besides  for  the  most  part  quite  evident. 
A.  There  is  an  obligation,  and  a  grave  one,  to  make  known  any 
impediments  to  a  marriage,  whether  impedient  or  diriment,  whe- 
ther certain  or  probable. 


I.  Bassibey,  Clandest.,  I,  n.  329. 


THE  ANTENUPTIAL  PROCLAMATIONS  57 

This  obligation  arises  not  merely  from  the  ecclesiastical  law  (*), 
but  from  the  natural  and  divine  law  itself.  It  is,  in  fact,  the  natural 
and  divine  law  that  imposes  the  duty  of  opposing  invalid  and 
unlawful  marriages.  Respect  due  to  the  sacrament,  charity  to  our 
neighbour,  regard  for  the  general  welfare  make  it  a  duty  incum- 
bent on  all.  Charity  towards  our  neighbour  requires  that  we 
should  endeavour  to  avert  not  only  the  commission  of  a  grievous 
sin,  but  also  those  grave  evils  that  flow  from  unlawful  marriages, 
and  most  especially  from  those  that  are  invalid ;  the  general 
welfare  of  society,  safeguarded  by  these  marriage  impediments, 
demands  the  fulfilment  of  this  obligation. 

The  gravity  of  this  obligation  is  a  natural  consequence  of  the 
gravity  of  the  interests  at  stake  (*).  It  is  necessary  to  make  known 
the  impediments,  as  soon  as  one  can  conveniently  do  so,  and,  as 
a  rule,  to  the  parish  priest.  Nevertheless,  there  is  no  reason  why 
one  should  not  first  endeavour  to  induce  the  engaged  parties  to 
ask  for  a  dispensation  or  give  up  their  proposed  marriage  ;  if  they 
do  so,  that  is  enough,  and  there  is  no  longer  any  necessity  to 
mention  the  matter  to  the  parish  priest. 

B.  This  obligation  also  ceases  to  bind,  if,  all  things  duly 
considered,  there  is  a  sufficiently  grave  reason  for  keeping  si- 
lence. 

1.  Thus  it  is  neither  obligator}^  nor  lawful  for  a  priest  to  reveal  except  in  the 
an  impediment  that  he  has  knowledge  of  only  under  the  seal  of  seal  of  con- 
confession  ;  for  the   law  ot  sacramental  secrecy   is  absolute,  and      fessioti, 
yields  to  no  other. 

But  if  at  the  same  time  he  knows  of  the  impediment  from  some 
other  source,  he  may  then  speak  of  it  without  injury  to  the 
secrecy  of  the  sacrament;  yet  he  should  always  act  with  prudence, 
so  as  not  to  give  rise  to  a  suspicion  that  he  has  violated  the  seal 
of  confession. 

2.  Neither  a  mere  promise  of  secrecy,  nor  the  natural  obligation  of  a  profess- 

ional secret, 


1.  Council  of  Trent,  sess.  XXIV,  ch.  I,  De  Reform.  Matr.';  ch.  6,  X,  IV,  18; 
ch.  7,  X,  IV,  II  ;  ch.  3,  X,  IV,  3.  For  this  last  chapter  see  Rosset,  o.  c,  n.  1143  ; 
De  Angelis,  o.  c,  tit.  Ill,  n.  5;  Santi,  o.  c,  tit.  Ill,  n.  16;  Anal,  eccl.,  igoi, 
p.  189-190. 

2.  We  have  seen  that  this  obligation  was  formerly  imposed  under  pain  ot 
excommunication. 


58  THE  ANTENUPTIAL  PROCLAMATIONS 

of  secrecy  is  an  excusing  cause  (')  ;  but  professional  secrecy  is 
generally  regarded  as  such.  A  professional  secret  is  one  that  is 
confided  to  anyone  in  his  professional  capacity,  as,  for  instance, 
to  a  parish  priest,  a  doctor,  as  such.  A  secret  of  this  kind  is  strictly 
binding  as  often  as  the  revealing  of  it  would  be  to  the  detriment 
oi  the  very  person  who  came  to  ask  advice;  e.g.,  the  making  known 
an  impediment  disgraceful  to  him,  or  causing  him  any  other 
injury  ('). 

The  common  good  requires  that  it  should  be  so  ;  for  it  is  impor- 
tant that  all  should  be  able  to  go  with  complete  security  and  con- 
fidence to  those  whose  business  it  is  to  give  assistance  and  advice 
to  others  in  their  professional   capacity  :  but  this  confidence  and 
readiness  to  seek  advice  would  cease  to  exist,  if  people  knew  that 
their  confidential  disclosures  could  not  be  kept  secret  ('). 
and  of  grave     3.  A  third  sufficient  excuse  is  tha.t  of  grave  and  personal  injury, 
iaUy^person-  whether  to  one's  goods  or  good  name,   that  would  result  from 
«^-         revealing  the  secret.  Nevertheless,  every  grave  injury  is  not  suffi- 


I.  Neither  the  »a/Mfa/ obligation  of  secrecy,  nor  ^;'0»jw«^  secrecy,  even  under 
oath,  is  an  excusing  cause,  because  it  is  a  question  of  the  general  good,  and  if 
the  natural  obligation  of  secrecy  sufficed,  no  impediment  of  a  disgraceful  nature 
could  be  brought  to  light. 

3.  Thus  a  doctor,  when  questioned  about  the  malady  of  his  patient,  of  which 
he  has  knowledge  from  the  patient  himself,  is  bound  to  strict  secrecy,  whatever 
may  be  the  incompatibility  between  marriage  and  the  malady  in  question, 
whatever  the  injury  that  he  foresees  must  result  from  it  for  the  other  party.  Cf. 
Coll.  Brug.,  t.  XV,  p.  31  s.  Compare,  however,  the  note  given  later  on  (n.  141), 
and  the  Thcol.  Pr.  Quartalschr.,  1910,  p.  857  s.  Observe  that  one  can  more 
easily  make  use  of  a  secret  communicated  6y  o  third  person,  wiihoni  prejudice 
to  him. 

3.  Public  confidence  would  not  be  less  shaken,  if,  as  Rosset  suggests,  o.  c,  n. 
1 149,  one  made  «  knowledge  of  the  impediment  reach  the  ears  of  the  parish 
priest  or  Ordinary  in  such  a  way  that  the  interested  party  remained  quite  igno- 
rant as  to  the  identity  of  the  informant  »  ;  as  a  matter  of  fact,  it  would  be  quite 
enough  to  destroy  confidence,  if  people  knew  that  the  parish  priest,  the  doctor,... 
to  whom  a  secret  had  been  entrusted,  were  able  to  make  use  of  it  in  such  a  man- 
ner. The  majority  of  modern  writers  take  this  view  ;  and  among  them  Feye, 
De  Imp.,  n.  369  ;  Gasparri,  o.  c,  II,  n.  117 ;  De  Becker,  De  Matr.,  p.  353  ;  Leit- 
NER,  Lehrb.,  p.  399 ;  Wernz,  o.  c,  IV,  n.  143 ;  Theol.  Mechl.,  o.  c,  n.  31.  qu.  4 ; 
Lehmkuhl,  o.  c,  II,  n.  677  ;  to  these  may  be  added  the  Confercntia  Romana,  in 
the  Anal.  eccles„xgox,  p.  191 ;  on  the  other  side  we  have  Ballerini-Palm.,  o.  c, 
VI,  n.  905,  supported  by  Rosset. 


THE  ANTENUPTIAL  PROCLAMATIONS  59 

cient  to  free  one  from  the  obligation  of  revealing  every  impedi- 
ment, no  matter  what  it  may  be,  but  the  injury  must  be  proportio- 
nably  greater,  as  the  anticipated  evil  consequences  of  silence  are 
more  grave.  For  this  purpose  it  is  necessar}^  to  distinguish  not 
merely  between  impedient  and  diriment  mipediments,  but  also 
between  diriment  impediments  with  relation  to  one  another  ;  thus 
a  graver  motive  would  be  necessary  to  justify  silence  about  an 
impediment  of  the  natural  law,  than  about  an  impediment  of  the 
ecclesiastical  law  ;  about  a  relationship  in  the  first  degree  than 
about  one  in  the  second  only  ;  and  so  forth. 

While  taking  account  of  this  observation,  we  have  to  add  that 
there  are  certain  considerations  of  personal  injury  that  suffice  to 
free  one  from  the  obligation  of  revealing  any  impediments  what- 
soever, even  the  gravest,  however  unheard  of  the  contemplated 
marriage  may  be.  Thus  if  it  should  happen,  as  we  know  (')  that 
it  has  happened  more  than  once  in  our  own  country,  that  a  mar- 
riage should  be  projected  between  a  brother  and  his  natural  sis- 
ter, or  even  between  a  father  and  his  own  daughter,  the  woman 
who  knows  of  this  scandalous  secret,  and  whose  sin  at  the  begin- 
ning was  the  cause  of  all  this  evil,  is  nevertheless  not  bound  to 
make  the  impediment  known  to  the  parish  priest,  nor  even  to  the 
engaged  parties,  on  account  of  the  shame  that  she  would  bring 
upon  herself ;  and  this  is  the  case  even  when  her  avowal  is  the 
only  means  of  preventing  such  an  unnatural  union. 

We  have  in  view  especially  personal  injury,  for,  as  a  rule,  one 
cannot  omit  to  reveal  an  impediment  on  account  of  the  injur}''. 


I.  A  married  woman  at  X.,  during  the  lifetime  of  her  husband,  had  a  daughter 
by  a  married  man,  who  was  himself  the  father  of  a  son.  In  the  course  of  time 
this  son  fell  violently  in  love  with  his  half-sister,  and  wished  to  marry  her.  The 
guilty  mother  alone  knew  of  the  relationship  between  the  engaged  parties,  but 
she  could  not  make  known  the  existence  of  the  impediment  without  bringing 
disgrace  upon  herself  and  provoking  a  terrible  scandal.  In  another  place  a 
woman  made  known  in  confession  that  her  daughter,  the  offspring  of  her  adulter- 
ous intercourse,  was  living  with  her  own  father  as  his  wife.  Here  again  the 
mother  was  the  only  person  who  had  knowledge  of  this  abominable  incest 
between  father  and  daughter,  and  she  asked  her  confessor  what  she  was  to  do. 
The  Anal,  cccles.,  1901,  p.  189  s.  give  an  analogous  case.  See  also  on  this  subject 
the  solution  of  the  case  proposed  in  the  Theol.  Prakt.  Quartalschr.,  1908,  p.  97  ss. 
and  by  Pauwels,  o.  c,  II,  p.  351  ss. 


6o  THE  ANTENUPTIAL  PROCLAMATIONS 

even  though  grave,  that  the  revelation  of  it  would  occasion   to 

the  engaged  parties,  or  to  a  third  person  ;   as,   for  example,  on 

account  of  the  disgrace   that  they  would  incur  in  the  eyes  of  the 

parish  priest  ;  unless,  indeed,  the  shame  would  ultimately  fall  on 

the  informant  himself.  If  it  was  necessary  to  spare  all  the  parties 

concerned,  the  declaration  of  impediments,  at  least   of  those  of 

a  shameful  nature,  would   become  illusory  ('). 

4o. 
The  duty  of      Note.  1.  Anyone  who  has  a  sufficient  reason  for  not  revealing 

excused  from  ^^  impediment  to  the  parish  priest,  whether  by  reason  of  the 

revealing  an  injurv  that  he  fears  for  himself,  or  on  account  of  the  secrecy  that 
tmpediment.   ,      .  ",  . 

he  IS  bound  to  observe,  is  still  bound,  as  far  as  he  can  do  so  with 

any  prospect  of  success,  to  caution  the  engaged  parties,  and  to 
urge  them  to  give  up  the  proposed  marriage  (*),  or  to  induce 
them,  if  possible,  to  seek  a  dispensation. 

There  is  even  no  reason  why  the  confessor  who  discovers  an 
occult  impediment  in  the  tribunal  of  penance,  should  not,  when  he 
judges  it  undesirable  to  admonish  the  penitent,  take  the  necessary 
steps  to  obtain,  without  the  knowledge  of  the  penitent  and  under 
cover  of  pseudonyms,  a  dispensation  or  revalidation  of  the  marri- 
age(').It  is  true  that  in  doing  so  he  would  be  making  use  of  know- 
ledge obtained  under  the  seal  of  confession,  but  the  law  of  the 
sigillttm  does  not  disallow  all  use  of  such  knowledge,  but  only  that 
which,  if  known  as  permissible,  would  be  a  burden  to  penitents 
and  keep  them  from  confession  ;  which  is  not  the  case  here  (*). 


I.  In  exceptional  cases  it  may  happen  that  the  threatened  injury  to  the  third 
parties  is  such  as  to  justify  silence  in  their  favour.  Thus,  for  example,  in  the  first 
case  given  in  the  preceding  note,  if  a  stranger  had  been  in  the  secret,  one 
could  hardly  oblige  this  person  to  stop  the  marriage,  if  he  could  not  do  so 
otherwise  than  by  making  the  whole  matter  known  to  the  engaged  parties,  on 
account  of  the  exceptionally  grave  disgrace  that  the  revelation  would  bring  upon 
the  parents  and  the  entire  family. 

a.  This  would  be  the  case  with  a  doctor,  who  knew,  as  a  professional  secret, 
that  a  party  to  a  proposed  marriage  was  impotent. 

3.  See,  on  the  other  side,  A.  Knoch,  in  the  Rev,  Eccl.  de  Liege,  HI,  p.  114  ss. 

4.  We  are  speaking  only  of  use  made  of  the  knowledge  obtained  in  confes- 
sion for  the  benefit  of  the  penitent  himself.  Thus  if  the  sister  of  a  fiancee 
accused  herself  of  having  had  intercourse  with  her  future  brother-in-law,  this 
would  constitute  an  impediment  of  affinity  for  the  young  man  ;  but  the  confessor 


THE  ANTENUPTIAL  PROCLAMATIONS  6l 

2.  In  what  precedes   we  hscve  treated  oi private  denunciation,  Note  on  legal 
not  of  legal  opposition  to  the  celebration  of  the  marriage.  The  right    °PP^""'^'^- 
of /^o'a/ opposition  belongs  only  to  the  parties  interested,  and  these 
are  not  the  same  in  every  kind  of  impediment. 

Thus  tor  the  impediment  arising  from  beiroihment,  the  forsaken 
party  alone  has  the  right  to  institute  an  action  of  this  kind  ;  where 
the  impediment  is  due  to  parental  dissent,  only  the  father  and 
mother  can  take  action,  and  so  on  in  other  cases.  Cf.  De  Becker, 
De  mair.,  p.  476. 

Appendix.  Provisions  of  the  civil  law. 

1 .  Antenuptial  publication.  ^^ 

The  following  are  the  enactments    of  the  law  (for  Belgium)   of  the  Provisions  of 
26  December  1891,  as  modified  by  the  law  of  the  7  January  1908  (*),  repla-       "  ' 

cing  the  provisions  of  the  code  Napoleon  on  this  subject. 

«  Art.  I.  Avant  la  celebration  du  mariage,  I'officier  de  I'^tat  civil  fait  1.  concerning 
une  publication,  unjour  de  dimamhe,  a  la  parte  de  la  maison  commune  (*),  ^"  "^'^  *""  '" 
Cette  publication  dnonce  les  prenoms,  noms,  profession,  domicile  et  resi- 
dence des  futurs  epoux,  leur  qualite  de  majeur  ou  de  mineur,  et  les  prenoms, 
noms,  profession,  domicile  et  residence  de  leurs  peres  et  meres.  Elle 
enonce  en  outre  le  jour,  lieu  et  heure  ovi  elle  a  ete  faite  ainsi  que  la  com- 
mune ou  le  mariage  sera  cdlebrd  (^).  Elle  est  transcrite  sur  un  seul 
registre,  cote  et  paraphe  comme  il  est  dit  en  I'article  41  du  Code  civil,  et 


could  not  set  about  obtaining  a  dispensation  from  it  without  the  previous  permis- 
sion of  the  penitent. 

I.  The  Coll.  Brug.,  t.  Xin,  p.  388  ss.  give  the  text  and  its  interpretation.  The 
former  of  these  two  laws  abrogated  articles  63  to  65  and  165  to  169  of  the  Civil 
Code,  and  replaced  them  by  new  provisions.  The  second  modified  articles  66,  69, 
7r  and  75  of  the  same  code,  and  supplemented  certain  provisions  of  the  preced- 
ing law. 

3.  According  to  the  former  wording  of  art.  63,  the  publication  was  to  be  made 
in  a  loud  voice  ;  for  this  article  made  a  distinction  between  the  publication  and 
the  written  notice  that  was  to  be  put  up.  In  practice  this  clause  was  little  observ- 
ed, and  the  new  text  no  longer  requires  it.  See  TmRY,  o.  c,  n.  357. 

3.  The  law  of  7  Jan.  1908  added  this  last  provision  to  the  first  article  of  the  law 
of  36  Dec.  1S91.  It  was  introduced  in  favour  of  those  who  wished  to  raise  an 
opposition  to  a  marriage,  so  that  they  might  know  before  what  civil  officer  they 
ought  to  make  it:  because  in  consequence  of  the  modification  made  in  art.  66  by 
the  same  law  of  1908,  opposition  to  marriages  celebrated  in  Belgium  can  now  be 
made  only  before  «  I'officier  de  I'etat  civil  de  la  commune,  ou,  d'apres  I'acte  de 
publication,  le  mariage  sera  c^lebre  ». 


62  THE  ANTENUPTIAL  PROCLAMATIONS 

depose,  h.  la  fin  de  chaque  annee,  au  greffe  du  tribunal  de  I'arrondissement. 
(Art.  63  du  Code). 

Art.  2.  h'acte  de  publication  reste  affiche  a  la  porte  de  la  maison  com- 
mune. Le  mariage  ne  peut  etre  celdbre  avant  le  dixieme  jour,  depuis  et 
non  compris  celui  de  la  publication.  (Art.  64  du  Code). 

Art.  3.  Si  le  mariage  n'a  pas  ete  cel^bre  dans  I'annee,  a  compter  de 
I'expiration  du  d^lai  de  la  publication,  il  ne  peut  plus  etre  cdlebrd  qu'apres 
une  nouvelle  publication  faite  dans  la  forme  ci-dessus.  (Art.  65  du  Code). 

Art.  4.  La  publication  ordonnee  par  I'article  i^""  de  la  presente  loi  sera 
faite  dans  le  lieu  du  domicile  ou  de  la  residence  de  chacun  des  Spoux. 
(Art.  166  du  Code). 

Art.  5.  Si  le  domicile  actuel  n'a  pas  6i6  d'une  durde  continue  de  six 
mois,  la  publication  sera  faite  en  outre  au  lieu  du  domicile  precedent, 
quelle  qu'en  ait  ^t^  la  dur^e. 

Si  la  residence  actuelle  n'a  pas  ete  d'une  duree  continue  de  six  mois,  la 
publication  sera  faite  au  domicile,  quelle  qu'en  soit  la  duree. 

A  defaut  de  domicile  connu  dans  les  cas  prevnis  par  les  deux  paragraphes 
qui  precedent,  la  publication  sera  faite  dans  la  commune  ou  le  futur  ^poux 
a  reside  pendant  six  mois. 

A  defaut  d'une  residence  continue  de  six  mois,  elle  sera  faite  au  lieu  de  la 
naissance.  (Art.  167  du  Code). 

Art.  6.  Les  publications  qui  devront  etre  faites  ailleurs  qu'au  lieu  de  la 
celebration  du  mariage,  le  seront  k  partir  du  premier  dimanche  qui  suivra 
la  reception  de  la  requisition  ecrite  de  I'ofiicier  de  I'etat  civil  appele  a  pro- 
ceder  a  cette  celebration.  L'officier  de  I'etat  civil  ne  pourra  exiger  la 
production  d'autres  pieces. 

Des  le  lendemain,  il  ddlivrera  un  certificat  constatant  la  date  k  laquelle 
cette  publication  aura  6t6  faite  (*). 

Toutefois,  si  le  mariage  doit  etre  c^ldbr^  en  pays  Stranger  ou  dans  une 
commune  autre  que  celle  indiquee  a  I'acte  de  publication,  le  certificat  sera 
d^livrd  k  I'expiration  du  ddlai  de  publication,  et  il  constatera,  outre  la  date 
de  la  publication,  qu'il  n'existe  point  d'opposition  (*).   (Art.  168  du  Code). 


I.  This  provision  was  introduced  by  the  law  of  1908,  and  is  applicable  only  to 
marriages  celebrated  in  Belgium,  the  same  as  the  clause  relating  to  objections, 
which  we  have  just  mentioned,  and  of  which  the  above  is  a  logical  consequence. 
The  law  decrees  that  opposition  to  marriages  shall  be  made  before  the  civil 
officer  alone  in  charge  of  the  marriage  :  if,  then,  publications  are  to  be  made 
elsewhere  than  in  the  place  of  celebration,  it  is  quite  natural  that  the  civil  officer 
should  not  await,  before  giving  the  certificate,  the  expiry  of  the  time  fixed  for 
receiving  opposition. 

a.  This  second  provision  concerns  especially  marriages  celebrated  out  0/  Bel- 


THE  ANTENUPTIAL  PROCLAMATIONS  63 

Art.  7.  he  Procureur  du  Roi  pres  le  tribunal  de  premiere  instance  dans 
rarrondissement  duquel  les  impetrants  se  proposent  de  contract er  leur 
mariage,  peut  dispenser,  pour  de  causes  graves,  de  la  publication  et  de  tout 
delai  ('). 

La  meme  faculte  est  accordee  aux  chefs  de  mission  et  consuls  de  carriere 
de  Belgique,  ainsi  qu'aux  agents  non  r^tribues  du  corps  consulaire  beige 
jusqu'au  grade  de  vice-consul  inclusivement,  pour  autant  qu'ils  ne  resident 
pas  au  siege  d'une  legation  ou  d'un  consulat  de  carriere  sauf  a  ceux-ci  a 
rendre  immediatement  compte  a  la  legation  ou  au  consulat  de  carriere 
dont  ils  relevent,  des  causes  de  la  dispense  ou  du  refus  de  I'accorder  ». 
(Art.  179  du  Code). 

2.  Opposition  to  a  marriage. 

The  Code  Napoleon  recognises  the  right  of  opposing  a  marriage  only  in  2.  opposition, 
certain  determinate  persons,  to  wit  : 

a)  In  the  person  united  by  marriage  with  one  of  the  parties  proposing  to 
marry  (*) ; 

b)  In  those  in  the  ascending  scale,  that  is  to  say  in  the  father  and  in 
default  of  the  father,  in  the  mother,  and  in  default  of  father  and  mother,  in 
the  grandfathers  and  grandmothers,  and  even  in  the  great-grandfathers  and 
great-grandmothers  ; 

c)  In  default  of  any  relation  in  the  ascending  scale,  in  the  brother  or 
sister,  in  the  uncle  or  aunt, in  the  first  cousin  (of  either  sex),  but  only  in  the 
two  following  cases  :  i.  when  consent  of  the  family  council  has  not  been 
obtained  for  the  marriage  of  minors  who  have  no  living  relations  in  the 
ascending  scale;  2.  when  the  opposition  is  based  on  the  insanity  of  the 
future  husband  (^) ; 


gium,  for  which,  on  the  subject  of  opposition,  the  regulations  anterior  to  1908 
remain  in  force.  Cf.  Coll.  Brug.,  t.  XIII,  p.  302. 

1.  See,  with  regard  to  this  provision  of  the  law  of  1891,  what  we  say  further  on 
(n.  401),  where  we  treat  of  marriage  in  extremis.  Cf.  also  Coll.  Brug.,  t.  VII,  p. 
134  ss.,  and  compare  with  t.  I,  p.  105  s.  An  analogous  provision  was  introduced 
nto  France  in  1907.  Under  the  sway  of  the  Civil  Code,  which  empowered  the 
emperor  or  the  king  to  give,  for  grave  reasons,  a  dispensation  from  the  second 
publication,  by  a  grave  reason  was  understood,  not  merely  serious  sickness,  but 
necessity  for  immediate  departure,  and  imminence  of  confinement.  Cf.  Demo- 
LOMBE,  o.  c,  II,  n.  184. 

2.  A.  172.  According  to  a  decision  of  the  French  Court  of  Cassation,  of  the  14 
of  April  1902  {Pas.,  1903,  IV,  118),  «  I'epoux  divorce  est  sans  qualite  pour  former 
opposition  au  mariage  de  son  ex-conjoint  avec  le  complice  de  I'adultere,  dont 
la  constatation  judiciaire  a  determine  le  divorce  ». 

3.  A. 174. 


64  THE  ANTENUPTIAL  PROCLAMATIONS 

d)  In  the  guardian  or  in  the  trustee  in  the  two  preceding  cases,  but  only 
in  so  far  as  he  is  authorized  by  the  family  council  ('). 

The  public  magistrates  also  has  power,  under  art.  46  of  the  law  of 
20  April  1810,  to  oppose  the  celebration  of  a  marriage  in  the  interest  of 
public  order ;  but  in  this  case  the  magistrates  does  not  act  by  way  of 
opposition,  but  by  direct  action. 

If  the  opposition  is  made  in  conformity  with  the  law,  the  civil  officer,  by 
the  terms  of  art.  68  of  the  civil  code,  and  under  a  penalty,  cannot  proceed 
to  the  celebration  of  the  marriage  until  notice  of  withdrawal  has  been  given 
him. 

The  withdrawal  of  the  opposition  can  be  made  voluntarily  by  him  who 
has  raised  it,  or  in  virtue  of  a  judicial  decision. 

The  tribunals  must  pronounce  for  the  withdrawal  of  the  opposition,  if 
that  is  not  founded  upon  one  of  the  impediments,  whether  diriment  or 
impedient,  recognised  by  the  civil  law.  Those  in  the  ascending  scale  differ 
from  collateral  relations  in  this,  that  the  former  are  not  bound  to  make 
known  the  motives  of  their  application  to  the  court  (*) ;  but  if  this  is  not 
based  on  the  law,  the  tribunal  will  pronounce  for  the  withdrawal  of  the 
opposition  ('). 

Note.  If  oppositions  to  the  celebration  of  a  marriage  are  notified  to  him 
or  by  persons  to  whom  the  law  does  not  accord  this  right,  either  apart  from 
the  cases  determined  by  law,  the  civil  officer  is  not  bound  to  suspend  the 
celebration  of  the  marriage;  but,  if  the  impediment  to  the  marriage 
appears  to  him  genuine,  he  will  ahnost  always  delay,  so  as  not  to  expose 
himself  to  the  penalties  provided  against  civil  officers  who  proceed  with  a 
marriage  that  is  subject  to  an  impediment,  Cf.  Planiol,  o.  c,  nn.  801  and 
824  ;  Corbet,  o.  c,  p.  15  s  ,  who  shows  the  difference  between  the  effects 
of  an  opposition  made  in  conformity  with  the  civil  code  and  those  of  every 
other  opposition  (*). 


1.  A.  175. 

2.  Art.  173,  and  compare  with  articles  176  and  179. 

3.  See  further  on,  n.  250,  in  the  note. 

4.  For  the  British  law  see  appendix. 


BOOK  II 


MARRIAGE 


BOOK  II 


MARRIAGE 


Part  I 
MARRIAGE   IN  GENERAL 


-^»-c-o-g5o-e>-< 


Part  I. 


47. 

Marriage  may  be  regarded  in  the  first  place  infieri,tha.t  is  to  say,    Division  of 

as  a  contract,  and  in  the  second  place  in  facto  esse,  or  as  the  conju- 
gal union  established  by  the  contract  between  husband  and  wife. 
This  contract,  as  we  shall  show  later,  is,  between  Christians,  a 
sacrauieni,  and  consequently  it  also  may  be  regarded  from  a  two- 
fold point  of  view  :  a)  as  being  simply  a  contract,  abstracting 
from  the  sacrament  ;  this  is  what  marriage  is  in  reality  among 
non-christians  ;  b)  as  having  been  raised  to  the  dignity  of  a  sacra- 
ment. 

In  the  first  section,  then,  we  shall  treat  of  the  matrimonial  con- 
tract regarded  in  itself ;  a  second  section  will  be  devoted  to  the 
matrimonial  contract  as  a  sacrament ;  and  a  third  to  the  conjugal 
union ;  this  will  be  followed  by  a  fourth  section  dealing  with  the 
regulation  of  marriage  both  as  a  contract  and  as  a  union. 


68  NATURE  OF  THE  MATRIMONIAL  CONTRACT 

Section  I 
THE   MATRIMONIAL  CONTRACT  IN  ITSELF 

Chapter  I. 
NATURE   OF    THE    MATRIMONIAL    CONTRACT. 
Article  1.  Meaning  and  origin  of  the  matrimonial  contract. 


48. 

Meaning  of      I.   Meaning. 


Marriage. 


Marriage  (*)  as  a  contract  may  be  defined  :  A  contract  by  which 


I.  The  Latin  word  matrimonium  comes  from  malris  munium,  the  maternal 
office,  because,  as  Tancrbd  says,  Summa  dc  matrimonio  (Edit.  Wunderlich, 
Gottingen,  1841),  p.  15,  «  dat  mulieribus  esse  matres  ».  It  is  called  matrimonium 
rather  than patrimonium.  because,  according  to  Gregory  IX,  chap.  2,  X,  III,  23, 
the  infant  has  more  need  of  maternal  than  paternal  attentions,  and  the  mother 
bears  the  burden  before  birth,the  anguish  at  birth,  and  the  subsequent  anxieties. 

It  is  called  also  in  Latin  conmibium  or  nuptiac  ir om  nubere,  to  veil,  because 
when  newly  wedded  wives  were  given  over  to  their  husbands,  they  used  to  veil 
their  heads  as  a  sign  of  modesty  and  submission.  (Cf.  Glasson,  o.  c,  p.  i6g). 
The  word  nuptiae  (nuptials)  has  the  further  signification  of  festivities  and  solem- 
nities that  took  place  on  the  occasion  of  the  marriage.  The  iarm  nubere  is  also 
frequently  employed,  and  formerly  still  more  so,  to  signify  the  consumma- 
tion of  the  marriage.  Thus  the  nupta,  in  opposition  to  the  desponsata,  was  a  wife 
already  known  by  her  husband,  as  distinguished  from  one  who  was  still  a  virgin 
(chap.  39,  31,  40,  C.  XXVII,  qu.  2,  and  ch.  i,  C.  XXXVIII,  i).  The  word  conntt- 
bium,  in  the  Roman  law,  usually  signified  the  ability  to  contract  a  lawful  mar- 
riage ;  cf.  Sehling,  Die  Unterschcidung,  p.  38  ;  Laurin,  Intr.  in  jus  matr.,  p.  26 ; 
Leitnbr,  Lehrb.,  p.  3.  Finally  it  is  also  called  conjugium  (komjugum,  yoke) 
because  of  the  effect  produced  by  the  matrimonial  contract  in  joining  the  man 
and  the  woman  under  the  same  yoke. 

The  Flemish  echt,  and  the  German  Ehe  come  from  the  ancient  form  ewa  : 
wet,  band,  {loi,  lien).  Hence  e-gade  (husband)  signifies  lawful  husband  (wettige 
gade)  ;  and  the  act  of  legitimating  (wettigen)  a  natural  child  is  called  echtcn.  The 
German  Trauung,  whence  comes  the  Flemish  trouw,  owes  its  origin  to  an 
ancient  German  custom  :  in  the  celebration  of  the  marriage,  the  wife  was 
delivered  (toevertrouwd)  by  her  father  or  guardian  into  the  hands  of  her 
husband  ;  at  a  later  period  the  custom  changed,  and  required  that  husband  and 
wife  should  be  intrusted  to  one  another.  See  further  on  no  63,  in  the  note,  and 
compare  with  n"  83. 

With  regard  to  tiiQ  Flemish  huwelijk,  Vlamikq,  o.  c,  I,  no  86,  in  the  note, 


NATURE  OF  THE  MATRIMONIAL  CONTRACT         69 

man  and  woman  are  associated  and  united  with  one  another  as  a  common 
principle  for  the  generation  and  education  of  children. 

Explanation  : 

1 .  It  is  a  contract,  an  agreement  :  that  is  to  say,  the  accord  of 
distinct  wills  producing  a  legal  effect. 

2.  by  which  man  and  woman...:  it  is  a  contract  of  a  special  nature, 
requiring  not  merely  the  accord  of  two  wills,  but  the  accord  of 
two  wills  belonging  to  persons  of  different  sexes. 

3.  are  associated  :  the  matrimonial  contract  is  directed  to  an  asso- 
ciation that  has  in  view  one  and  the  same  end. 

4.  and  united  with  one  another  as  a  common  principle  for  the  gene- 
ration :  in  addition  to  the  association  thus  formed  with  a  view  of 
pursuing  the  same  end  with  a  common  purpose,  the  partners 
become  a.  principle  physically  and  morally  one  in  respect  of  the  same 
work  of  generation  and  education.  Procreation  is  not  the  act  of  the 
man  alone,  nor  of  the  woman  alone,  but  of  the  two  together.  The 
man  and  the  woman,  taken  separately,  do  not  constitute  two  par- 
tial principles,  producing  each,on  its  own  part, a  separate  share  of 
a  composite  and  divisible  effect,  but  act  as  a  single  and  common 
principle  of  generation  (*). 

5.  and  education  of  children :  the  work  of  education  of  the  children 
does  not,  indeed,  present  the  same  physical  unity  as  that  of  gene- 
ration ;  and  hence  results  a  difference  in  the  manner  and  unity  of 
action  between  the  respective  duties  of  husband  and  wife.  Never- 
theless, as  the  one  obligation  necessarily  follows  from  the  other, 
parents  are  bound  to  bring  up  their  children  precisely  for  this 
reason  that,  as  a  common  principle  of  generation,  they  have  pro- 


explains  the  origin  of  the  word,  after  Van  Helten,  Tijdschrift  voor  Ned.  Taal-  en 
Letterkunde,  Leiden,  XIII,  p.  314  s.:  «  0ns  huwelijk  >  is  af  te  leiden  van  het 
Gudhoogduitsche  hileih  (middelhoogd./«7tfic/jj,  hetgeen  eene  samenstelling  is  van 
hi  (samentrekking  van  /«tco-a) =maritus  en  uxor  en  leih  of /giAi'=carmen,gezang, 
gehuich.  Hiwa-leich  is  dus  in  eerste  beteekenis  :  gezang,  gejuich,  ter  eere  van 
het  bruidspaar,  en  werd  later  metonymice  (pars  pro  toto)  voor  de  geheele 
bruidsplechtigheid  genomen  ». 

I.  The  employment  of  the  passive  «  conjunguntur  »  indicates  that  the  husband 
and  wife  are  constituted  one  principle,  not  only  by  virtue  of  the  consent 
mutually  given,  but  also  by  the  act  of  God,  who  ratifies  and  sanctions  the  con- 
sent of  the  contracting  parties,  and  so  confirms  the  bond  induced  by  the  consent. 


70         NATURE  OF  THE  MATRIMONIAL  CONTRACT 

created  them.  The  business  of  education,  then,  belongs  to  the 
province  of  the  procreative  principle,  and  is  the  business  of  the 
husband  and  wife,  as  constituting  this  principle  ('). 

The  above  definition  is  based  on  Holy  Scripture,  which  relates 
the  institution  of  marriage.  In  fact  we  learn  from  S.  Matthew, 
XIX,  4,  5,  that  God  has  ordained  an  association,  an  intimate 
union  :  «  A  man...  shall  cleave  to  his  wife,  and  they  two  shall  be 
in  one  flesh  ».  Then  the  object,  the  end  of  this  union  is  set 
before  us,  the  propagation  of  the  species.  The  same  passage  of 
S.  Matthew  clearly  intimates  this  in  speaking  ot  the  different  sex 
of  the  partners  :  >  Have  ye  not  read,  that  he  who  made  man  from 
the  beginning,  made  them  male  and  female  ?...  For  this  cause  shall 
a  man  leave  father  and  mother,  and  shall  cleave  to  his  wife,  and 
they  two  shall  be  in  one  flesh  ».  The  diversity  of  sex  was  ordained 
by  God  for  the  multiplication  of  the  human  race,  according  to 
Genesis,  I,  27,  28:  «  God  created  man...;  male  and  female  he  crea- 
ted them.  And  God  blessed  them,  saying  :  Increase  and  multiply, 
and  fill  the  earth  ». 

Further,  the  fact  that  they  are  constituted  not  only  the  princi- 
ple of  the  procreation  of  the  offspring,  but  also  of  training  it  up, 
follows  as  a  natural  consequence,  since  the  child,  when  born,  calls 
for  proper  development  of  body  and  mind,  which  it  cannot  attain 
by  its  own  strength  (*). 

Finally,  that  the  union  is  to  be  constituted  by  contract,  is  indi- 
cated in  the  texts  quoted,  since  the  association  in  question  is 
incomprehensible  except  as  a  voluntary  and  fully  deliberate  union. 

This  idea  of  marriage,  viz.  an  association  between  man  and 
woman  with  a  view  to  the  propagation  of  the  human  race,  is  further 
sanctioned  by  the  common  sense  of  mankind,  and  is  also  indi- 
cated by  the  difference  of  sex  of  the  partners. 


1.  Cf.  Martin,  expounding  more  on  this,  o.  c,  I,  p.  2  ss. 

2.  «  Since  the  child  is  one  flesh  with  its  father  and  mother,  it  ought  to  be 
loved  and  cherished  as  their  own  flesh  by  both  of  them  conjointly,  and  so  it  is 
not  only  to  be  brought  to  life  in  the  first  instance,  but  must  also  be  led  on  and 
trained  up  to  the  preservation,  increase  and  perfection  of  life,  as  it  were  by  a 
continuous  generation,  not  merely  as  a  being  of  flesh,  but  as  flesh  animated  by 
a  rational  soul  and  raised  to  the  higher  state  of  man  ».  Martin,  o.  c,  I,  p.  6  ss.  ; 
compare  S.  Thomas,  Contra  Gentiles,  1.  Ill,  c.  122,  and  3»  2*',  qu.  154,  art.  3. 


NATURE  OF  THE  MATRIMONIAL  CONTRACT         7I 

Note.  1 .  Whence  it  appears  that  the  matrimonial  contract  joins 
the  parties  in  the  closest  union,  a  union  which  the  Roman  Law 
rightly  defines  as  :  «  consortium  omnis  vitae,  divini  et  humani 
juris  communicatio  >  (*) ;  and  again  :  «  viri  et  mulieris  conjunctio 
individuam  vitae  consuetudinem  retinens  »  (*). 

2.  This  pemianent  joining  of  husband  and  wife  as  a  common 
principle  for  the  generation  and  education  of  children  is  brought 
about  by  the  contract,  or  marriage  in  fieri,  and  constitutes  what 
is  called  the  conjugal  union,  or  marriage  in  facto  esse. 

II.  Origin  of  the  matrimonial  contract. 

1.   The  matrimonial  contract  has  its  origin  in  ih^  natural  law.   Marriage  is 
It  is  in  the  order  of  nature  that  the  human  race   should  propa-  "•'  "  '^^  "*^* 
gate  itself  by  generation  ;  and  that  the   infant,  once  procreated, 
should  not  be  left  to  its  native  powerlessness,  but  should  be  form- 
ed and  educated  physically  and  morally  ('). 

This  education  from  its  nature  requires  (*)  the  intimate  and 
permanent  collaboration  of  the  father  and  mother  (')  ;  but  this 
in  its  turn  presupposes  a  positive  agreement,   inasmuch  as  there 


1.  L.  I,  Dig.  XXIII,  2. 

2.  §  I,  Inst.,  1,9. 

3.  «  Birth  would  be  to  no  purpose,  if  the  proper  nourishment  of  the  new-bom 
were  neglected,  for  as  a  rule  they  would  die  ».  S.  Thomas,  Contra  Gent.,  1.  Ill, 
ch.  133 ;  compare  2^  3*=,  qu.  154,  art.  2. 

4.  Accidentally  it  may  happen  that  children  may  be  well  brought  up  without 
the  permanent  cohabitation  of  their  parents  ;  but  the  nature  of  things  requires 
certain  conditions,  and  this  it  is  that  we  have  to  take  into  consideration. 

5.  It  is  manifest  that  in  the  human  species,  the  mother  alone  could  not  suffice 
for  the  bringing  up  of  the  offspring,  since  the  requirements  of  human  life 
demand  much  that  could  not  be  provided  by  one  alone...  Again  we  must  consi- 
der that  in  the  human  species,  the  offspring  needs  not  merely  nourishment  for 
the  body,  as  in  the  case  of  animals,  but  instruction  for  the  mind  as  well ;  for  the 
other  animals  have  their  natural  instinct  wherewith  to  provide  for  themselves ; 
but  man  lives  by  reason,  and  must  come  to  prudence  through  long  expe- 
rience. Hence  it  is  necessary  that  children  should  be  instructed  by  their  parents 
who  have  already  gained  experience,  nor  are  they  capable  of  this  instruction 
as  soon  as  born,  but  only  after  a  long  timo,  and  especially  when  they  have  come 
to  the  years  of  discretion.  This  education  takes  time,  and,  since  the  passions 
depreciate  prudence,  repression  is  called  for  as  wxU  as  instruction.  The  mother 
alone  is  not  equal  to  this,  and  the  cooperation  of  the  father,  with  greater  intel- 
ligence to  instruct,  and  greater  power  to  correct,  is  required.  It  is  necessary, 


72         NATURE  OF  THE  MATRIMONIAL  CONTRACT 

is  at   the  outset  no  obligation  to  marry,  and  consequently  each 

one  is  at  liberty   to  bind  himself  to  the  conjugal  life  and  to  its 

corresponding  duty  of  cohabitation,  or  to  remain  unmarried. 

and  divine        2.  The  matrimonial  contract,  moreover,  owes  its  origin  to  God 

ortgm ;      ^^^  instituted  it,  as  we  learn  from   the  Holy  Scriptures. 

it  is  a  con-      Marriage   is,   then,   a  r.atural   contract,   since  it   is   rooted  in 

*^7am^time^  nature  itself,  but  it  is  more  than  a  mere  secular  contract.  It  is  of 

natural  and  itself,  and  quite  independently  of  its  sacramental  dignity,  a.  sacred 

and  a  religious  contract.  If  we  consider  only  its  own  distinctive 

qualities,  this  contract  is'sacred  and  religious,  not  essentially  and 

intrinsically,  but  extrinsically  :   by  reason  of  its   divine  origin, 

of  its  religious  signification, since  it  symbolizes  the  union  of  Christ 

with  the  Church,   and  also  because  of  the   end  for  which  it  is 

ordained  (*). 

* 
*  * 

50. 
Statement        Many  evolutionists  undertake  to  prove  that  this  doctrine    is    false. 

and  *'Y"^^   According  to  them,  the  marriage  contract  did  not  originally  exist,  and  it 

evolutionist  was  only  by  passing  through  successive  stages  that  the  human  race  arrived 

theory,  wntcn  ^^  ^^^  present  system  of  marriage.  If  we  are  to  believe  them,  the  primitive 

cedents  of    married  life,  universally  and  legally  recognised,  was  no  other  than  promis- 

'^^rflJ^'^'  ^"^(y  between  the  sexes.  Then  came  marriage  by  abdiictio7i,  and  after  that 

marriage  by  purchase.  To  confirm  their  statements  evolutionists  appeal  to 

traces  found  in  ancient  history,  and  to  the  customs  of  certain  peoples  at 

the  present  day,  especially  of  those  that  are  the  least  advanced. 

The  well  known    work  of  Westermarck,   already   quoted,  explains 

this  theory  at  length ;  also  Howard,  o.  c,  I,  p.  39-223  (*).  Thus,  with 

regard  to  : 


rmge. 


therefore,  in  the  human  species  that,  not  a  short  time,  as  in  the  case  of  birds, 
but  a  very  considerable  portion  of  life  should  be  devoted  to  the  development  of 
the  offspring.  Thus,  since  it  is  necessary  in  the  case  of  all  animals  that  the  male 
should  remain  with  the  female  as  long  as  the  welfare  of  the  offspring  requires 
it,  it  is  natural  in  the  case  of  man  that  this  should  be  not  for  a  brief  period, 
but  that  the  husband  should  have  a  lasting  union  with  one  and  the  same  wife. 
This  union  we  call  marriage.  S.  Thomas,  Contra  Gent,,  1.  c.  ;  cf.  3*  2««,  qu.  154, 
art.  a ;  cf.  also  Monsabre,  o.  c,  p.  65  ss. 

\.'Ency\.  Arcanum.  Cf.  also  Lemaire,  o.  c,  p.  3-13,  who  gives  the  testimony 
of  men  learned  in  the  law,  even  of  unbelievers.  See  below,  no  55. 

2.  Cf.  also  Bebel,  o.  c.  part  I,  La  Femme  dans  le  passe,  p.  13  s.;  Nystrom,  o,  c, 
p. 184  s.;  Peytel,  o.  c,  p.  13-31  ;  Giraud-Teulon,  o.c,  ch.  i  and  2  ;  and  others 


NATURE  OF  THE  MATRIMONIAL  CONTRACT         73 

A.  Promiscuity  : 

1 .  Westermarck  first  shows  (p.  53-55)  that  promiscuity  has  prevailed,  and    1.  Promis- 
es a  matter  of  fact  still  prevails  in  some  few  and  uncivilized  countries ;  but        "''*  ^' 
he  observes  that  many  of  the  facts  formerly  alleged  have  since  been  reco- 
gnised as  false  or  insufficiently  proved,  and  he  adds  quite  rightly  that,  even 

if  they  are  admitted,  one  cannot  logically  infer  from  the  existence  of  pro- 
miscuity as  a  primitive  and  universal  system  of  mariage  :  «  Meme  si  quel- 
ques-uns  des  r^cits  sont  exacts,  et  s'il  y  a  eu  promiscuite  dans  le  com.merce 
entre  les  sexes,  chez  quelques  peuples,  ce  serait  une  erreur  d'en  inferer 
que  ces  cas  entierement  exceptionnels  representent  une  etape  de  develop- 
pement  humain  que  I'humanite,  comme  tout,  a  du  traverser.  En  outre, 
rien  ne  nous  autoriserait  a  considerer  cette  promiscuite  comme  une  survi- 
vance  de  la  vie  primitive  de  I'homme,  ou  meme  comme  une  marque  d'un 
etat  tres  grossier  de  societe.  Ce  n'est  nullement  chez  les  peuples  les  plus 
inferieurs  que  les  rapports  sexuels  s'approchent  le  plus  de  la  promiscuite  > 
(p.  60). 

2.  The  same  author  gives  (p.  71)  several  ancient  customs  that  were 
current  in  different  countries,  in  which  they  claim  to  find  traces  of  primi- 
tive promiscuity.  But  the  alleged  facts  prove  nothing.  Thus  : 

a/  The  jus  primae  noctis  (right  of  the  first  night)  and  the  custom  of 
interchanging  wives,  particularly  between  hosts  and  guests,  are  better 
explained  (as  far  as  the  alleged  facts  are  really  historical)  (*)  by  the  rude 
tyranny  of  chiefs,  and  by  a  coarse  conception  of  the  duties  of  hospitality. 


quoted  by  Howard,  o.  c,  I,  p.  46  :  these  authors  assume  primitive  promiscuity. 
See  also,  on  the  other  side,  Leitner,  T^hrb.,  p.  36-58  ;  Viollet,  Histoire  du 
Droit,  q.  484  s.;  Fonsegrivb,  o.  c,  p.  7-43  ;  Avigdor,  o.  c.,  L.  I.  ch.  i. 

I.  The  jus  primae  noctis,  as  understood  by  the  enemies  of  the  Church,  such  as 
Bebel,  o.  c,  p.  40 ;  Nystrom,  o.  c.,  p.  216  ;  Giraud-Teulon,  o.  c.,  p.  33  ss..  and 
others,  is  relegated  by  many  and  the  best  authorities  to  the  region  of  fable,  at 
least  as  far  as  our  countries  are  concerned.  If  we  are  to  believe  the  enemies  of 
our  faith,  this  right  of  the  first  night  existed  in  full  force  in  the  Middle  Ages.and 
in  the  heart  of  a  Christian  country  ;  the  prince,  or  even  in  certain  places,  the 
priest,  had  the  right  to  violate  the  newly  wedded  wife  on  the  first  night  of  the 
nuptials.  For  the  ampler  refutation  of  this  anti-historical  statement, see  Schmidt, 
o.  c,  particularly  p.  365-379. 

In  a  word  :  among  pagans,  the  virginity  of  young  maidens  was  looked  upon 
as  consecrated  to  the  divinitj^ ;  this  is  how  the  right  of  destroying  virginity 
by  sexual  intercourse  was  to  be  obtained  through  the  agency  of  the  priest  or 
the  prince,  acting  as  delegates  of  the  deity.  To  secure  it,  a  certain  sum 
was  paid ;  and  this  was  known  as  the  right  of  the  first  night.  Among  certain 
peoples,  the  husband  gave  his  bride,  after  the  first  night  of  the  marriage,  a  pre- 


74  NATURE  OF  THE  MATRIMONIAL  CONTRACT 

b/  The  case  of  the  matriarchaU,  which  is  the  great  war-horse  of  the 
evolutionists,  affords  no  better  proof  of  their  proposition.  Under  this 
regime,  which  as  a  matter  of  fact  formerly  flourished  here  and  there,  the 
child  took  the  name  of  its  mother,  and  inherited  only  its  mother's  pro- 


sent  as  the  price  of  her  lost  virginity  (after  the  fashion  of  the  Morgengabe  of  the 
Germans) ;  this  custom  might  also  be  called  the  right  of  the  first  night. 

Among  Christians,  this  expression  for  the  most  part  meant  the  sum  of  money 
or  fine  paid  by  husbands  in  order  to  obtain,  by  way  of  a  dispensation,  permission 
to  consummate  the  marriage  on  the  first  night, without  observing  the  three  days  of 
continence,  that  was  the  rule  in  the  Middle  Ages, after  the  example  of  Tobias.  See 
also  ScHERER,  o.  c,  p.  257,  note  57 ;  Chardon,  o.  c,  p.  160.  Thus  there  exists  a 
decree  of  the  Parliament  of  Paris, of  the  19th  of  May  1409,  abolishing  this  fine  for 
the  diocese  of  Amiens  ;  DeForas,  o.  c,  p.  57  s. ;  Du  Cange,  Glossarium  —  sup- 
plementum,  Vo  Marcheta. 

A  symbolical  ceremony,  m  use  in  the  Middle  Ages,  on  the  occasion  of  the 
marriage  of  a  vassal,  has  helped  to  gain  credence  for  the  opinion  according  to 
which  the  suzerain  really  had  the  right  to  violate  the  wife  of  his  vassal  on  the 
first  night  of  the  marriage.  The  vassal  was  looked  upon  as  under  the  yoke  of  his 
suzeram  and  joined  to  him  as  the  wife  to  the  husband  ;  hence  ancient  writings 
speak  of  him  as  the  Eliefrau  of  his  prince  (Sohm,  Das  Recht,  p.  61  s.).  On  her 
marriage,  the  newly  wedded  wife  took  her  place  in  these  quasi-marital  relations 
with  the  suzerain;  this  was  apparently  signified  by  the  so-called  occupation  of  the 
nuptial  bed  in  the  name  of  the  prince.  The  same  symbolical  usage  was  observed 
on  the  marriage  of  a  prince  by  proxy.  Cf.  De  Foras,  o.  c,  p.  363  ;  Avigdor,  o.  c. 
p.  30;  and  particularly  Hanauer,  o.  c,  p.  2S5  s.,  compared  with  p.  255  s.  and 
what  we  shall  have  to  say  under  no  60.  From  this  there  would  come  certain 
forms  of  speech  :  as  droit  de  cuissage,  droit  de  jambage  (cf.  Du  Cange,  Glossarium, 
Vo  Marcheta).  At  a  later  date  the  suzerain  replaced  this  ceremony  by  the  prac- 
tice of  exacting  from  his  vassal,  on  the  occasion  of  his  marriage,  a  kind  of 
tribute,  as  a  recognition  of  his  seignorial  right.  This  fine,  again,  went  by 
the  name  of  the  right  of  the  first  night,  especially  as  the  conjugal  relations  of 
the  first  night  were  considered  as  completing  the  marriage.  This  seignorial  right 
was  also  called  marcheta,  nuptiaticitm ,  bathinodium  (bednood) ;  cf.  Du  Gauge, 
Glossarium,  ad  haec  verba. 

We  do  not  by  any  means  wish  to  deny  the  possibility  of  certain  abuses  in  this 
matter,  even  among  Christians  in  past  ages.  In  particular,  it  would  not  be  surpri- 
smg  if  princes  and  suzerains  permitted  themselves  from  time  to  time  something 
more  than  a  merely  symbolical  occupation  of  the  nuptial  bed  of  their  vassals. 
Cf.  Du  Cange,  Glossarium,  Vo  Marcheta.  What  we  do  deny,  is  the  jus  primae 
noctis,  as  understood  by  the  Bebels  and  Nystroms,  and  represented  as  a  legal 
institution  sanctioned  by  general  use  among  pagans  and  Christians  of  the  Middle 
Ages. 


NATURE  OF  THE  MATRIMONIAL  CONTRACT  75 

perty  (').  We  have  here,  they  tell  us,  an  indubitable  trace  of  primitive 
promiscuity  in  the  intercourse  of  the  sexes  :  the  regime  of  the  matriarchate 
supposes  that  wives  were  then  at  the  service  of  each,  and  consequently 
it  was  impossible  for  the  child  to  know  its  father. 

The  answer  is  easy.  Without  taking  into  account  the  fact  that  the 
matriarchal  regime  never  prevailed  to  any  very  great  extent  (*),  there  are 
other  reasons  than  that  set  forth  by  the  evolutionists  which  might  perfectly 
well  have  brought  the  practice  into  being ;  as,  for  instance,  the  very  close 
ties  that  unite  the  child  with  its  mother,  and  above  all  the  widespread 
practice  of  polygamy.  Where  polygamy  existed,  it  was  natural  to  distin- 
guish the  children  bom  to  the  same  father  but  by  different  mothers,  by 
giving  them  the  maternel  name.  Each  wife  of  the  same  husband  thus 
constituted  for  him  a  distinct  family,  especially  as  she  frequently  had  a 
separate  establishment.  Moreover,  even  assuming  that  uncertainty  as  to 
paternity  contributed  to  the  introduction  of  this  regime,  it  is  by  no  means 
a  necessary  inference  that  this  was  due  to  promiscuity,  since  such  uncer- 
tainty might  very  well  arise  from  the  actual  infidelity  of  the  wife,  or  even 
from  the  mere  suspicion  of  it  (^). 

B.  Marriage  by  abduction  (*). 

St. 

There  still  exist  among  some  few  rude  tribes  certain  traces  which  seem   2.  marriage 

to  support  this  part  of  the  thesis.  Westermarck,  p.  369,  relates  that  in     ^  tion*'^' 
some  countries  :    «  quand  la  noce  est  arrangee  et  les  cadeaux  payes,  le 
marie  saisit  la  mariee  et  I'enleve,  suivi  de  ses  parents  qui  font  semblant 
d'essayer  de  la  delivrer  »  (s). 

The  author  thinks,  and  we  share  his  opinion,  that  marriage  by  abduction 
really  existed  here  and  there  in  ancient  times.  But  he  also  recognises 
(p.  372  seq.)  that  we  cannot  infer  therefrom,  that  this  was  a  regular  phase, 


I.  See  the  description  of  this  regime  in  L,bkoy, Religion  des  Primitifs,-p.  103  s.  ; 
Peytel,  o.  c,  p.  24-30;  Giraud-Teulon,  o.  c,  passim. 
3.  Westekmarck,  o.  c,  p.  97-103  ;  Howard,  o.  c,  I,  p.  110-117. 

3.  Some  also  invoke  as  an  argument  the  burlesque  custom  known  as  couvade, 
which  consisted  in  this  :  during  the  wife's  confinement  the  husband  simulated  the 
pains  of  childbirth,  and  after  her  delivery  continued  to  ape  the  condition  of  a 
woman  who  has  given  birth  to  a  child.  See  Peytel,  o.  c,  p.  34s. ;  Viollet, 
o.  c,  p.  384  s.  ;  Giraud-Teulon,  o.  c,  p.  138  ss. ;  Howard,  o.  c,  I,  p.  112. 

4.  According  to  the  evolutionists  this  is  how  marriage  by  abduction  and  pur- 
chase took  the  place  of  primitive  promiscuity  :  certam  men,  wanting  wives  of 
their  own,  would  buy  or  carry  off,  as  occasion  offered,  some  fair  traveller  or 
stranger,  and  forsake  the  wives  of  the  clan  who  belonged  to  all  in  common. 

5.  See  in  Leroy,  L«  Pygmies,  p.  326,  the  account  of  a  marriage  by  simulated 
abduction  ;  also  in  Howard,  o.  c,  I,  p.  164-175. 


76  NATURE  OF  THE  MATRIMONIAL  CONTRACT 

a  legal  and  universal  stage,  through  which  marriage  passed.  As  a  matter 
of  fact,  few  tribes  are  found  in  which  at  the  present  day  they  mimic  the 
abduction  of  the  bride ;  and  who  shall  say  if  this  symbol  now  in  vogue  has 
its  origin  in  actual  abduction  ?  Other  explanations  are  possible  :  it  might, 
for  instance,  be  merely  a  device  for  emphasizing  the  separation  that  mar- 
riage imposes  on  the  woman  :  she  must  leave  her  own  people  and  follow 
her  husband.  Cf.  also  Howard,  o.  c,  I,  p.  173-179,  and  p.  119  s. 

C.  Marriage  by  purchase. 

52. 
3.  marriage      Among  most  peoples  in  ancient   times  there  unquestionably  existed 

by  purchase,  usages  and  forms  of  speech  which,  at  first  sight,  seem  to  have  originated 

in  the  practice  of  marriage  by  purchase :   the  husband  buying  his  bride 

from  her  parents. 

It  is  known,  for  instance,  that  with  the  Romans  marriage  by  purchase 
(per  coemptionem)  was  one  of  the  forms  in  vogue  (') ;  that  among  the 
Hebrews  Jacob,  as  we  read  in  the  Scriptures,  agreed  to  serve  his  uncle 
Laban  seven  years  for  Rachel ;  that  in  most  German-speaking  countries 
we  meet  with  such  expressions  as :  —  the  marriage  price  (wUemofi  or 
meta) ;  the  purchase  price ;  to  buy  a  wife,  and  so  on ;  we  know  that  the 
man  paid  an  agreed  price  to  the  parents  of  his  bride,  or,  if  he  married  a 
widow,  to  the  family  of  her  former  husband  (2). 

Apparently  we  cannot  deny  that  marriage  by  purchase,  properly  so 
called,  really  existed  of  old  in  certain  countries.  But  it  is  a  far  cry  from 
this  to  the  thesis  of  the  evolutionists,  who  profess  to  find  therein  a  legiti- 
mate and  universal  phase  of  marriage.  Let  us  not  exaggerate  the  con- 
clusive force  of  the  customs  and  forms  of  speech  mentioned  above.  To  be 
decisive,  they  would  have  to  mean  the  actual  purchase  properly  so  called 
of  the  woman  herself,  without  leaving  any  place  for  mutual  consent. 

But  that  is  not  proved. 

l.We  do  not  exactly  know  whether  the  price  paid  and  the  ceremony 
of  purchase  had  reference  to  the  acquisition  of  the  bride  or  of  the  mim- 
dium,  (-)  which,  according  to  the  Roman  and  the  German  law,  passed 


I.  The  Roman  law  acknowledged  two  principal  forms  of  marriage  :  marriage 
in  manu,  which  was  at  first  the  only  form  in  use,  and  marriage  sine  manu.  The 
former  (Manttsche)  caused  the  wife  to  pass  mto  the  family  and  power  of  the  hus- 
band (or  of  his  father).  It  could  be  contracted  in  three  different  ways,  among 
others  by  purchase  (per  coemptionem)  ;  in  this  form  the  parties  went  through  a 
symbolical  ceremony  of  purchase  and  sale  in  the  presence  of  the  libripcns. 

3.  Cf.  Westermarck,  o.  c.  p.  378-397  ;  Lefebvre,  o.  c,  p.  356  seq  ;  Sehling, 
Die  Unterscheidung,  p.  i  seq.  ;  Viollet,  Histoire...,  p.  402  seq. 

3.  In  the  German  law  unmarried  women,  even  those  of  age,  were  placed  under 
the  guardianship  of  the  head  of  the  family' ;  on  their  marriage  this  authority 


NATURE  OF  THE  MATRIMONIAL  CONTRACT         77 

from  the  parents  of  the  bride  to  her  husband.  The  second  supposition  would 
seem  to  be  the  correct  one,  at  least  among  the  Romans.  With  them  mar- 
riage per  coemptionem  was  contracted  by  the  simple  mutual  consent  of  the 
engaged  parties,  and  the  purchase  ceremony  affected  only  the  transmission 
of  the  right  of  seignory  ;  this  transmission  was  made  by  the  father  of  the 
bride  in  the  hands  of  the  husband,  or  of  him  upon  whom  the  husband 
was  dependent  (*). 

2.  We  must  not  be  in  a  hurry  to  take  literally  the  expressions  :  nuptial 
price,  purchase,  and  the  like.  It  would  seem  rather  that  these  terms  are 
to  be  understood  as  indicating  a  return  made  by  the  husband  for  the  favour 
of  parental  consent :  because  the  parents  had  thereby  given  him  their 
daughter,  who  was  their  property,  and  had  admitted  him  into  their  own 
family  circle.  At  the  most,  one  can  see  therein  a  compensation  intended 
to  counterbalance  the  loss  that  the  parents  sustained  through  the  departure 
of  their  daughter.  It  is  easy  to  see  how  they  came  to  give  to  the  price  paid 
on  this  occasion  the  name  of  nuptial  price,  and  price  of  purchase,  especially 
as  the  fixing  of  it  would  naturally  give  rise  to  a  good  deal  of  discussion  (*). 

It  would  appear  that  we  must  understand  in  the  same  sense  the  form  of 
speech  in  use  among  the  Franks  :  marriage  par  le  sou  et  par  le  denier, 
where  we  find  the  trace  of  the  marriage  gift  reduced  to  an  offering  of  <  un 
sou  et  denier  »  (^).  The  same  observation  applies  to  the   old  Prankish 


passed  into  the  hands  of  the  husband.  This  right  of  guardianship  or  seignorial 
power  was  called  mundium ;  and  he  who  was  invested  with  it  was  called  niun- 
dualdns.  For  the  etymological  origin  of  the  word  mundium,  see  Rochb,  o.  c, 
p.  40. 

I.  Stocquart,  o.  c,  p.  50  s.  Friedberg,  Deis  Recht  der  Eheschl.,^.  17  s.  shows 
the  same  concerning  the  German  law,  viz.  that  the  seignorial  power,  and  not 
the  bride,  was  the  subject  of  purchase. 

3.  «  Je  con9ois  bien  que  le  pretium  nuptiale,  au  lieu  d'etre  un  simple  present 
purement  gracieux  et  volontaire,  ait  pu  etre  debattu  d'ordinaire  entre  les  famil- 
ies comme  une  condition  de  mariage,  et  qu'il  ait  6te  tarife  meme  en  certaines 
coutumes  germaniques,  a  d^faut  d'une  convention  formelle.  Est-ce  que  Ton  n'a 
pas  ^•u  de  tout  temps  (souvent  meme  encore  de  nos  jours),  des  pourparlers 
divers  d'interet,  d'ou  peut  dependre  la  conclusion  du  mariage  et  qui  viennent 
s'adjoindre  ou  se  heurter  au  sentiment  qu'eprouvent  les  fiances  ?  Est-ce  que  les 
Romains  n'ont  pas  debattu  sur  la  dot,  et  plus  tard  aussi  bien  sur  la  donatio 
ante  nuptias  ?  Qui  a  jamais  parle,  au  point  de  vue  du  droit,  des  mariages  par 
achats  et  ventes,  meme  au  sujet  de  ceux  qu'on  voit  le  plus  fortement  teintes 
d'interet  ou  gates  par  I'argent  ?  »  Lefebvre,  o.  c,  p.  373.  The  same  author,  on 
page  376,  gives  the  text  taken  from  the  ancient  Eddas,  where  the  gifi  and  the 
purchase  are  mentioned  together. 

3.  Cf.  Lefebvre,  0.  c.,p.  384  s.  At  a  later  date,  after  the  example  of  the 


78         NATURE  OF  THE  MATRIMONIAL  CONTRACT 

custom  of  the  rcipus  (*),  to  which  we  have  already  alluded.  He  who  married 
a  widow  had  to  pay  solemnly  in  mallo  (^)  the  sum  of  three  sous  and  a 
denier  to  the  family  of  the  former  husband. 

We  content  ourselves  with  merely  mentioning  the  argument  brought 
forward  by  certain  authors  as  a  confirmation  of  the  evolutionist  conten- 
tion, and  drawn  from  the  very  nature  of  the  ancient  mundium  or  seigno- 
rial  right.  According  to  them  ('),  women,  among  the  Germans,  were 
entirely  under  the  power  of  their  lord  (mundualdtis) ,  and  were  regarded 
as  mere  objects  of  merchandise.  We  turn  again  to  Lefebvre  (o.  c, 
p.  330-338),and  he  shows  us  conclusively  that  this  argument  cannot  stand, 
the  right  of  seignory  carrying  with  it  no  other  powers  beyond  the  right 
of  guardianship  and  the  duty  of  affording  protection  (*). 

We  may  rightly  infer  that  in  general,  arguments  drawn  from  ancient 
customs  in  support  of  marriage  by  purchase  are  not  conclusive.  Scheil 
(o.c,  p.  57  s.)  has  made  the  same  remark  when  speaking  of  the  Babylonian 
customs,  and  tells  us  that  the  code  of  Hammourabi  (about  2000  B.  C.) 
contains  many  provisions  that  appear  at  first  sight  to  imply  marriage  by 
purchase  ;  that  they  speak  there  of  a  sum  of  money  to  be  paid  by  the 
bridegroom  to  the  father  of  the  bride ;  but  that  on  closer  examination,  it  is 
obvious  that  this  ceremony  has  not  the  import  that  some  would  attribute 
to  it  (»). 
Conclusion.  This,  then,  is  the  conclusion  that  we  come  to.  Historical  data  do  not 
weaken  in  the  least  the  Christian  contention  as  to  the  origin  of  marriage. 
The  contract  by  mutual  consent  has  been  its  true  form  from  the  beginning ; 


Franks,  the  nuptial  price  became  more  reduced  in  the  greater  part  of  the  Ger- 
manic tribes :  it  was  changed  into  the  dower  bestowed  by  the  husband  on  the 
wife,  and  was  accompanied  by  a  little  present  called  tnorgengab,  the  gift  of  the 
husband  to  the  wife  after  the  first  night  of  the  marriage,  as  a  compensation  for 
the  loss  of  her  virginity.  See  Lefebvre,  o.  c,  p.  417-438;  Stocquart,  o.  c. 
p.  51  s.;  cf.  below,  no  132,  under  4,  in  note. 

I.  Caron,  o.  c,  p.  113  s.  —  SoHM,  Das  Recht  der  Eheschliessung,  p.  63  seq.,  on 
the  contrary,  looks  upon  the  reipus  as  a  fine  directed  against  the  unlawful 
re-marriage  of  widows. 

a.  The  Mallutn,  according  to  Friedberg,  Das  Recht,  p.  31,  was  the  Gericht- 
stdtU :  the  place  in  which  it  was  customary  to  celebrate  marriages  ;  whence  we 
have  the  word  Gemahl,  to  denote  married  persons.  Other  authors,  and  among 
them  Sohm,  reject  this  interpretation. 

3.  ViOLLET,  Histoire...  p.  387  s. ;  493  s. 

4.  Cf.  Pellet,  o.  c,  p.  63  s.  ;  Bernard,  o.  c,  p.  48  s. 

5.  Cf.  CuQ,  0.  c;  Cruveilhier,  Lc  Code  d' Hammourabi,  in  Rev.  du  cl.  fr., 
t.LXIX,  p.agas. 


NATURE  OF  THE  MATRIMONIAL  CONTRACT         79 

if  certain  customs  have  deviated  from  it,  if  some  still  do  so,  that  is  not  a 
question  of  evolution,  but  rather  of  degeneration  ('). 

Article  2.  End  of  marriage. 

55. 

The  end  (')that  marriage, as  such,seeks  to  attain, that  is  to  say,  Thcprocrea- 

the  end  that  nature  and  the  Creator  assign  to  it,  is  no  other  than  g^ucatUm  of 

the  propagation  of  the  human  species ;  in  other  words,  the  procreation    children  is 

the  cfid  of 
and  education  of  children.  The  very  idea  of  marriage  includes  the    marriage, 

enunciation  of  this  end.  Marriage  is  in  fact  an  association  formed 

with  a  view  to  the  generating  and  educating  of  children.  As  we  have 

seen,  this  idea  is  confirmed  by  the  common  sense  of  mankind  and 

by  the  \ery  fact  that  the  partners  are  of  different  sexes. 

The  propagation  of  the  human  species  is,  then,  the  end  and  aim  theproperand 
of  marriage.  It  has  no  other ;  this  end  is  the  only  end.  Undoubtedly  ^^  ' 
marriage  brings  with  it  yet  something  more  :  affection  and  mutual 
support,  lawful  joys,  and  a  remedy  for  concupiscence  ;  but  the  true 
end  of  marriage  is  not  there.  There  we  find  but  means  to  attain 
that  end,  or  at  the  most,  and  in  no  proper  sense,  ends  that  are  essen- 
tially subordinate  to  the  true  end  ('). 

The  use  of  marriage,  while  allaying  the  passsions,  is  accompa- 
nied with  sensible  joy,  so  as  to  give  an  impulse  to  the  procreative 
faculty,  and  thus  come  more  surely  to  the  end  in  view.  The  Crea- 
tor has  willed  that  husband  and  wife  should  find  in  their  common 
life  a  mutual  comfort  and  support,  that  so  stability  might  be  given 
to  that  life,  and  the  education  of  their  offspring  secured.  He  has 


I.  See  Howard,  o.  c,  I,  p.  223  s.  (also  p.  93-110);  Lichtenberger,  o.  c, 
p.  29  s.  ;  Leroy,  Relig.  des  prim.,  p,  385  s. 

3.  Where  it  is  a  question  of  the  end  of  marriage,  strictly  speaking  a  distinction 
ought  to  be  made  between  marriage  in  fieri  and  marriage  in  facto  esse.  The  end 
of  the  act  of  marrying,  of  marriage  in  fieri,  is  properly  the  conjugal  bond  itself, 
or  marriage  in  facto  esse,  since  the  contract  is  immediately,  instrinsically  and 
essentially  referred  to  this  and  has  its  term  herein ;  but,  from  the  fact  that  the 
whole  contract,  as  such,  tends  to  and  has  reference  to  ma.Tna.ge  in  facto  esse,  its 
end  may  also  be  ascribed  to  marriage  in  fieri,  and  there  is  no  need  to  distin- 
guish between  the  end  of  marriage  in  fieri  and  the  end  of  marriage  in  facto  esse. 
Cf.  Martin,  o.  c,  I,  p.  50  s. 

3.  Cf.  Collat.  Brug.,  t.  VI,  p.  469  seq.;  t.  VII,p.  437  seq.  Inasmuch  as  the  allay- 
ing of  concupiscence  and  mutual  solace  are  called  ends,  the  propagation  of  the 
species  shall  by  called  the  primary  end. 


8o  NATURE  OF  THE  MATRIMONIAL  CONTRACT 

willed  that  this  joint  life,  this  dwelling  together  of  father  and 
mother,  should  be  fostered  by  the  warmth  of  conjugal  affection, 
so  that  the  obligations  of  the  married  state  might  be  rendered 
supportable  thereby,  and  the  common  task  of  education  more 
easy  (*). 

54. 

It  follows  that     What  follows  from  the  foregoing  : 

marriageisl. 

impossible  be-      \.  Granted  the  end  of  marriage,  only  those  who  are  in  themselves 

who  arebcrse  capable  of  procreating  and  bringing  up  children,  are  capable  of  mar- 

incapable  of  nage,  to  the  exclusion  af  all  others,  as,  for  instance,  eunuchs  (*), 

generatton,        ^         _.  __  .     .  ,  . 

who,  as  Sixtus  V  msists,  must  not  be  peraiitted  to  marry  (').  Mar- 
riage, in  fact,  like  every  other  human  act,  should  tend  of  itself 
towards  the  end  that  nature  has  assigned  to  it  (*). 

and  S.  it  is      2.  The  object  that  the  Parties  have  in  view  in  contracting  marriage, 

marry  to  the  must  be  in  agreement  with  the  proper  end  of  marriage,  at  least  in 

positive  exclu-  q  nes^ative  way.  Let  us  explain  our  meaning  : 
sionofthe  . 

generation  ;      a/  The  matrimonial  compact  itself  may  not  exclude  in  a  positive  way 

the  procreation  and  generation   of  children.  Such  a  stipulation 

would  put  the  contract    in  positive  contradiction   to  the   end  for 

which  marriage  was  instituted,  and  would  render  the  contract 

altogether  null  (*).  (See  below,  n^^  85  and  88,  where  we  treat  of  the 


1.  «  The  primary  end  of  marriage...  cannot  be  other  than  the  generation  and 
training  up  of  children ;  and  thereiore  there  cannot  be  other  ends  except  such 
as  are  consequent  on  this,  and  are,  as  it  were,  necessary  means  whereby  mar- 
riage may  either  simply,  or  more  expeditiously  and  more  perfectly  attain  its 
primary  end  *.  Martin,  o.  c,  I,  p.  64. 

2.  Below,  in  the  chapter  on  impotence,  we  shall  speak  more  at  length  of  persons 
incapable  of  generation.  See  also  under  no  135. 

3.  Constit.  Cum  frequenter,  of  the  33  June  1587. 

4.  That  an  act  may  be  accidentally  (per  accidens)  unfitted  to  attain  its  end,  is  of 
little  importance  ;  for  the  natural  law  considers  the  conditions  and  qualities  that 
spring  from  the  nature  of  things  (per  s«j, and  not  those  that  are  merely  accidental, 
according  to  S.  Thomas,  C.  Gent.,  1.  Ill,  ch.  133. 

5.  If  the  intention  of  having  no  children  does  not  form  an  integral  part  of  the 
matrimonial  compact,  but  is  merely  subjoined  to  it,  the  contract  is  not  null, 
though  ordinarily  it  is  sinful  on  the  part  of  the  contracting  parties.  Nevertheless 
this  intention  may  be  legitimate,  if  its  direct  object  is  the  observance  of  conti- 
nency,  and  childlessness  follows  indirectly  and  only  as  a  consequence  ;  it  may 
even  be  an  act  of  virtue  and  perfection,  if  done  through  the  love  of  chastity. 


NATURE  OF  THE  MATRIMONIAL   CONTRACT  8l 

placing  of  a  suspensive  condition  that  is  contrary  to  the  essence 
of  the  contract). 

b/  To  be  the  best  possible,  the  matrimonial  compact  should  be 
made  with  the  positive  and  explicit  intention  of  prosecuting  the  end 
of  marriage  ('). 

c/  Nevertheless,  in  order  that  the  contract  may  be  simply  lawful,      a  simply 
it  is  sufficient  that  it  should  be  conformed  to  this  object  in  a  nega-  ^usion^dMs 

tive  way,  that  is  to  say,  in  such  a  manner  as  not  to  exclude  posi-    ^ot  involve 

,       ,  p  ,  ,       •  ,  .  .      ,     .  1  •       .      sm,  but  tm- 

tively  the  act  oi  generation,though  without  positively  intending  it.    perfection. 

One  can,  therefore,  conscientiously  contract  marriage  with  a 
legitimate  intention  other  than  that  of  having  children,  provided 
that  this  last  named  object  is  not  excluded.  In  acting  thus,  one 
does  not  put  oneself  in  positive  opposition  to  the  end  proposed  by 
God.  We  will  go  further  and  say,  that  by  the  very  fact  of  its 
non-exclusion,  the  act  of  generation  is  implicitly  included,  and 
conformity  of  the  matrimonial  contract  with  its  proper  end  is 
secured  (*).  From  this  point  of  view,  then,  there  is  no  sin,  not  even 
venial,  in  contracting  marriage  with  the  sole  explicit  (but  not 
exclusive)  object  of  escaping  poverty,  of  finding  affection  and  sup- 
port, of  allaying  the  passions,  or  of  obtaining  lawful  enjoyment. 

Such,  then,  is  our  opinion  with  regard  to  the  end  of  marriage, 
and  such  are  the  conclusions  that  follow  irom  it. 

On  the  other  hand,  those  who  assign  to  marriage  as  proper  and 
independent  ends,  the  act  of  generation,  mutual  comfort,  and  the 
appeasement  of  the  passions,  are  logically  compelled  to  admit  to 
marriage  not  only  such  as  positively  exclude  from  their  inten- 
tion the  contingency  of  offspring,  but  also  those  who  are  radically 
and  irremediably  impotent,  as,  for  instance,  eunuchs.  To  them 
also  marriage  and  its  use  can  bring  comfort  and  even  the  pleasure 
that  they  long  for  (') ;  and  it  is  sufficient  that  the  act  and  intention 


I.  So  Tobias  junior  (Tab.,  vni,  9) :  « Et  nunc,  Domine,  tu  scis  quia  non 
luxuriae  causa  accipio  sororem  meam  conjugem,  sed  sola  posteritatis  dilectione, 
in  qua  benedicatur  nomen  tuum  in  saecula  saeculorum  ». 

Tlie  perfection  spoken  of  in  the  preceding  note  is  obviously  not  the  perfec- 
tion of  marriage,  as  such,  that  we  speak  of  in  the  text. 

3.  See  the  Salmanticenses,  o.  c,  tr.  IX,  cap.  Ill,  P.  HI,  no  34. 

3.  Cf.  ToPAi,  0.  c,  p.  68  s.;  Ferreres,  in  Eccks,  Review,  t.  XLVI  (1912), 
p.  2i6s. 


82  NATURE  OF  THE  MATRIMONIAL  CONTRACT 

safeguard  one  or  other  of  the  proper  and  independent  ends  of  the 
matrimonial  contract. 

This  consequence,  logically  irrefutable,  is  an  additional  confir- 
mation of  the  doctrine  which  we  have  advanced  as  to  the  one  and 
only  end  (in  the  strict  sense)  of  marriage. 

Article  3.  Honourable  nature  or  morality  of  marriage. 

Proposition.  Marmg'^  IS  in  itself  honourable  and  moral,  but  less 
Perfect  than  virginity. 

Proof. 
55. 
Marriage  is      First  point.   Marriage  considered  tn  itself,  abstractmg  from  the 

^ourc^hand'  sacrament,  is  not  only  honourable,  but  praiseworthy  and  invested 

holy  on  divers  -with  true  dignity. 

reason  of  its  This  follows  from  the  very  end  for  which  it  was  instituted  : 
'"'^'  it  conduces  «  not  only  to  the  propagation  of  the  human  race,  but 
to  the  bringing  forth  of  children  for  the  Church,  fellow-citizens 
with  the  saints,  and  the  domestics  of  God  (Eph.,  II,  19)  ;  so 
that  a  people  might  be  bom  and  brought  up  for  the  worship  and 
religion  of  the  true  God  and  our  Saviour  Christ  (Catech.  Rom., 
P.  II,  c.  VIII,  par.  15)  »  (*). 

by  reason  of      The  dignity  of  marriage  is  confirmed  by  its  origin,  for  God  himself 

*  'stitution*^  instituted  it,  as  we  have  seen  above  ;  cf.  Gen.,  I,  27,  28  ;  and  II, 
18,  23,  and  compare  with  Matth.,  XIX,  6,  and  with  the  Council  of 
Trent,  Sess.  XXIV,  cap.  unic. 

Moreover,  Our  Lord  t  ennobled  the  marriage  in  Cana  of  Galilee 
by  His  presence,  and  made  it  memorable  by  the  first  of  His  mira- 
cles (St.  John,  II) ;  and  for  this  reason,even  from  that  very  day,  it 
seemed  as  if  the  beginnings  of  new  holiness  had  been  conferred 
on  human  marriages  »  ('). 
by  reason  of      Finally,  the  dignity  that  belongs  to  marriage,  according  to   the 

^ationofthe'  rescript  of  St.  Leo  to  Rusticus,  Bishop  of  Narbonne  (458-459), 

mystical  uni-  jg  deduced  from  the  fact  that  <  the  matrimonial  union  has  been 
on  of  Chrtst 
with  the      constituted /yow  the  beginning  m  such  a  manner,  that,  beyond 

Church.     ^YiQ  sexual  intercourse,  it  contains  within  itself  the  sacrament  (in 


I.  Cf.  Encycl.  of  Leo  XIII,  Arcanum, 
a.  Cf.  the  same  Encyclical. 


NATURE  OF  THE  MATRIMONIAL  CONTRACT  83 

a  less  strict  sense),  that  is  to  say  the  symbol,  of  Christ  and  the 
Church  >  ;  Migne,  LIV,  col.  1204  s. 

Marriage,  indeed,  considered  in  itself,  in  the  intention  of  the 
Creator,  symbolizes  for  all  time,  and  in  the  following  manner,  the 
union  of  Christ  with  the  Church  : 

a/  in  the  first  place,  Eve  formed  and  issuing  from  the  side  of  the  sleeping 
Adam,  was  a  figure  of  the  Church  issuing  from  the  side  of  Christ,  the 
second  Adam,  dead  upon  the  Cross  ; 

b/  in  the  second  place,  a  man  is  joined  to  his  wife  in  such  a  manner  as  to 
constitute  with  her  a  single  principle  for  the  generation  and  education  of 
children,  just  as  Christ  unites  the  Church  to  Himself,  that  thereby  men  may 
be  born  to  the  divine  life,  and  educated  and  perfected  therein,  in  every  way 
through  the  joint  action  of  Christ  and  His  Church ; 

c/  in  the  third  place,  in  the  conjugal  life  precedence  belongs  to  the 
husband,  even  as  Christ  is  the  head  of  His  Church,  the  Saviour  himself  the 
head  of  His  mystical  body ; 

d/  in  the  fourth  place,  a  man  must  love  his  wife,  as  Christ  loved,  and 
loves  His  Church,  and  delivered  Himself  up  for  it ; 

e/  finally,  husband  and  wife  become  but  one  flesh,  as  Christ,  by  His 
Incarnation,  is  united  with  the  Church,  His  Spouse,  so  as  to  establish  a 
participation  of  nature  (*). 

These  considerations  are  amply  sufficient,  to  show  the  eminent 
dignity  of  marriage  considered  in  itself,  that  is  to  say,  in  its  natural 
aspect.  If,  in  addition  to  this,  we  regard  its  status  as  a  sacrament  of 
the  New  Law,  we  see  it  invested  with  a  merit  and  dignity  far 
greater  still,  for  Christ  has  thereby  brought  to  its  full  height 
the  initial  sanctity  of  the  matrimonial  contract.  «  Christ  our 
Lord  raised  marriage  to  the  dignity  of  a  sacrament ;  to  hus- 
band and  wife,  guarded  and  strengthened  by  the  heavenly 
grace  which  His  merits  gained  for  them.  He  gave  power  to  grow 
in  holiness  in  the  married  state  ;  and  making  marriage  in  a  won- 
drous way  an  example  of  the  mystical  union  between  Himself  and 
His  Church,  He  not  only  perfected  that  love  which  is  according 


t.  The  first  four  considerations  show  the  symbolical  signification  of  marriage 
not  consummated,  that  is  to  say,  the  union  of  Christ  with  His  Church  by  love 
and  common  action  J  the  last  has  relation  to  marriage  consummated,  which 
signifies  in  a  special  way  the  corporal  union,  so  to  speak,  of  Christ  with  His 
Church  through  the  Incarnation.  See  below,  no  60. 


84         NATURE  OF  THE  MATRIMONIAL  CONTRACT 

to  nature,  but  also  strengthened  the  natural  union  by  the  bond  of 
heavenly  love  ».  Encyclical  ^rca»«m. 
Confirmed  by     The  Holy  Scriptures  (')  on  many  occasions  extol  the  dignity  ot 
''^^^'^^'^"  marriage  ;  and  the  Fathers  unanimously    defend  it  against  the 
Fathers,     errors  of  the  Eustathians  (*),  of  the  Priscillianists  ('),  and  espe- 
cially against  those  of  the  Gnostics  and  the  Manicheans,  who, 
in  accordance  with  their  erroneous  dualistic  conceptions   con- 
demned marriage  (*).   Moreover,  marriage  has   always  been  in 
honour  in  the  Catholic  Church  (*)  and  among  Christian  people  (*)  : 
this  has  been  groundlessly  denied  by  Luther,  who  reproaches  the 
Catholic  Church  with  having  vilified  marriage,  and  having  cen- 
sured it  as  a  mischievous  state  C). 


1.  1  Cor.,  Vn,  9,  38,  36,  39;  I  Tim.,  IV,  1-3,  and  V,  14;  Eph.,  V,  38-32  ; 
Heb.,  XIII,  4,  Cf.  also  Leitner,  Lehrb.,  p.  33  s, 

2.  Synodus  Gangrensis  (about  the  middle  of  the  4'^  century),  can.  I,  in 
H6fele-Lbclercq,  o.  c,  I*,  p.  1029. 

3.  Synodus  Bragensis  (563),  can.  11,  in  Hefele-Delarc,  o.  c,  III,  p.  555  ss. 

4.  The  Gnostics  believed  that  matter  was  created  by  the  Demiurge,  or  evil 
principle,  and  was  opposed  to  the  spirit  created  by  God.  Consequently,  some  of 
them  condemned  marriage  and  sexual  intercourse  in  order  to  put  an  end  to  the 
evil  involved  in  the  propagation  of  the  human  race  ;  while  others,  on  the  con- 
trary, taught  that  it  was  necessary  to  overcome  the  flesh  and  its  concupiscence 
by  plunging  into  pleasure  until  all  desire  was  extinguished  ;  these,  equally  with 
the  former,  rejected  marriage  with  its  limited  pleasures.  Cf.  Clement  of 
Alexandria,  1.  Ill  Strom.  (Migne,  Vni,  col.  1098  s.) ;  and  Probst,  Sacramente 
p.  428-434. 

5.  The  Church  had  to  defend  the  honour  of  marriage  against  the  Albigenses, 
who,  as  is  well  known,  reprobated  marriage  and  the  marriage  act.  This  may 
be  seen  in  J.  Guiraud,  Questions  d'Histoirc  et  d' Archeologie  chretienne,  Paris, 
1906,  p.  65-86. 

6.  Falk  shows  this  at  length  (o.  c,  p.  12-69)  with  special  reference  to  the  Mid- 
dle Ages.  He  examines  popular  writings,  institutions,  and  historical  facts  that 
make  it  apparent  in  what  honour  marriage  was  held.  Among  other  interesting 
points,  he  relates  (p.  18  seq.)  that  in  many  places  a  custom  existed  of  setting  at 
liberty  one  who  had  been  condemned  to  death,  in  order  thad  he  might  marry  a 
maiden  who  freely  offered  herself  for  that  purpose.  See  also  Grisar,  Luther, 
II,  p.  484  ss. 

7.  Cf.  Grisar,  Luther,  II,  p.  482  ss.,  where  is  given  the  text  of  Luther's  accu- 
sation, that  the  Church  set  forth  marriage  and  its  use  as  «  Hurenwerk  ». 

As  regards  Luther's  own  teaching  on  marriage:  On  the  one  hand,  in  the 
years  immediately  following  his  defection,  especially  before  1520,  he  still 
acknowledged  that  virginity  excelled  the  married  state  (Grisar,  1.  c,  p.  303  ss.); 


NATURE  OF  THE  MATRIMONIAL  CONTRACT         8$ 

In  the  psalm  Miserere  man  is,  indeed,  said  to  have  been  conceived  in  . 
iniquities  ;  but  cathoHc  interpreters  for  the  most  part  understand  by  that, 
original  sin,  in  w^hich  all  are  conceived.  Those  who,  like  Baetgen(«), 
interpret  the  iniquity  and  the  sin  as  having  relation  to  the  act  of  procrea- 
tion, conclude  that  guilt  is  here  spoken  of  as  being,  not  in  the  conjugal 
act  as  such,  but  inasmuch  as  that  act  was,  in  this  case,  stained  by  adultery, 
and  they  are  of  opinion  that  the  psalmist  is  here  lamenting  that  he  was 
born  of  adultery. 

56. 
Second  point.  We  observe  in  the  first  place,  that,  in  the  compa-  The  state  of 

risen  we  are  making,  we  are  speaking  of  the  virtue  of  virginity,  "'sidgredin^' 

that  is  to  say,  of  virginity  €  that  does  not  refrain  from  pleasure    Uselfiskss 

,  •' ^  ..,.,.,-  ,  ,       perfect  than 

as  such,  out  of  mere  msensibility,  but  from  venereal  pleasure  only,    that  ofvir- 

for  a  supernatural  end,  and  in  accordance  with  the  dictates  of      S^*'*"^* 

right  reason  »  (*)  ;  as,  for  example,  for  the  purpose  of  being  able  to 

devote  oneself  more  freely  to  the  contemplation  of  divine  things. 

"We  observe  in  the  second  place  that  the  comparison  is  not  to  be 

made  between  virginity  and  marriage  with  respect  to  such  or  such 

a  person  and  in  such  determinate  circumstances,  but  between  the 

state  of  virginity  and  the  state  of  marriage  considered  in  themselves. 


subsequently,  in  conformity  with  his  principles  concerning  the  corruption  of 
nature  and  original  sin,  and  in  order  that  he  might  justify  his  desire  of  marriage 
and  indulge  the  heat  of  his  passion,  he  insists  on  the  irresistible  impulse  to 
marry,  and  the  impossibility  of  continency,  except  by  something  very  like  a 
miracle,  and  extols  marriage  as  the  gift  of  God,  as  a  spiritual  state,  deriving 
its  dignity  from  the  fact  it  provides  a  remedy  for  concupiscence,  constitutes  the 
foundation  of  society,  and  signifies  the  union  of  Christ  with  the  Christian  body 
(1.  c,  p.  317).  On  the  other  hand,  in  order  that  he  might  with  greater  effect  deny 
to  marriage  its  sacramental  nature,  and  transfer  its  jurisdiction  from  the 
Church  to  the  State,  with  his  accustomed  exaggeration,  he  insists  that  it  is  to 
be  looked  upon  as  a  profane  and  worldly  thing  (1.  c,  p.  316  ss;).  Moreover, 
while  theoretically  extolling  marriage,  practically,  in  his  way  of  speaking,  he 
frequently  treated  it  with  great  disrespect,  by  speaking  ill  of  woman,  and 
lewdly  describing  the  married  life.  But  this  must  be  attributed  to  the  heat  of 
lust,  unextinguished  by  marriage,  rather  than  to  a  change  in  his  ideas.  Cf. 
Grisar,  1.  c,  p.  318  ss.,  and  compare  with  pp.  492  and  506-510. 

Cf.  also  Friedberq,  Das  Recht,  p.  157  ss.  ;  Realencykl.,  t.  V,  p.  193-194; 
Christiani,  Luther  et  Lutheranisme,  Paris,  igo8,  7*  etude ;  Paquier,  L'^tat 
religieux  et  le  mariage  d'apres  Luther,  in  the  Rev.  cl.  fr.,  t.LXVI  (1911),  p.  385-417. 

I.  Handcommentar  zum  Alten  Testament.  —  Die  Psalmen,  3"^  ed.,  1897,  Gottin- 
gen.  p.  148. 

3.  Mgr.  Waffelaert,  De  Virtutibus  cardinalibus,  tract.  1, 1.  in,  no  135. 


86"        NATURE  OF  THE  MATRIMONIAL  CONTRACT 

that  is  to  say,  in  a  formal  sense,  and  in  accordance  with  the  quali- 
ties proper  to  each  state  (*). 

Having  premised  this,  we  assert  that  marriage  is  undoubtedly- 
less  perfect  than  virginity,  and  that  the  Council  of  Trent,  Sess. 
XXIV,  rightly  reprobated  the  error  of  those  who  say  :  «  that  the 
married  state  is  to  be  preferred  to  the  state  of  virginity  or  of  celi- 
bacy; and  that  it  is  not  better  and  more  blessed  to  remain  in  virgin- 
ity or  celibacy  than  to  marry  >  (*). 

Proofs.  Proofs.  "Without  enlarging  upon  the  clear  evidence  of  the  Holy 
Scriptures,  more  especially  Matth.,  XIX,  lo,  ii,  12.,  and  i  Cor. 
VII,  and  omitting  the  almost  innumerable  passages  from  the  Fa- 
thers that  support  our  assertion,we  shall  confine  ourselves  here  to 
arguments  supplied  by  theological  reasoning  only. 

1.  The  good  of  the  soul  is  higher  than  the  good  of  the  body,  as 
St.  Thomas  teaches,  2*  2",  qu.  152,  art.  4  ;  but  virginity  tends 
to  the  good  of  the  soul,  while  marriage  tends  to  the  good  of  the 
body,  that  is  to  say,  to  the  material  multiplication  of  the  human 
race. 

2.  Marriage  renders  a  man  less  fitting  and  less  disposed  to  the 
service  of  God,  seeing  that  he  gives  himself  up  to  the  pleasures  of 
sense,  which,  more  than  anything,  draw  the  mind  away  from 
prayer  and  spiritual  things  ;  and  is  involved  in  a  multitude  of 
material  and  worldly  cares  :  «  married  people  are  occupied  with 
pleasing  one  another,  with  maintaining  a  good  position  in  the 
world  for  themselves  and  their  families,  with  amassing  wealth 
for  their  children  ;  and  we  see  them  at  times  so  absorbed  in  these 


I.  «  Although  virginity  is  better  than  conjugal  continency,  nevertheless,  a 
married  man  may  be  better  than  a  celibate,  even  from  the  point  of  view  of 
chastity,  if  the  married  man  is  more  ready  to  observe  virginity,  where  the  neces- 
sity arises,  than  he  who  is  in  fact  a  celibate.  Whence  St.  Augustine  in  writing  to 
a  virgin  says  :  I  am  not  better  than  Abraham,  but  the  chastity  of  the  celibate  is 
better  than  the  chastity  of  marriage  >.  St.TnoMAS,  3*  2^'t  qu.152,  art.  4,  ad  3">  ; 
and  C.  Gent.,  1.  IH,  ch.  138. 

3.  The  Council  of  Trent  levels  this  especially  against  the  Protestants,  who  in 
conformity  with  the  later  opinion  of  Luther,  extolled  marriage  and  placed  it 
above  virginity,  looking  upon  the  former  as  a  higher  religious  state  then  the  lat- 
ter. 

As  to  the  opinion  of  the  Anglicans  on  marriage,  its  reference  to  virginity,  and 
also  the  enpedicncy  of  sacerdotal  celibacy,  cf.  Howard,  o.  c,  I,  p.  393-399. 


NATURE  OF  THE  MATRIMONIAL   CONTRACT  87 

pursuits,  that  they  can  hardly  find  one  half-hour  in  the  week  to 
give  to  the  service  of  God  (')  >. 

3.  The  act  proper  to  marriage  is  the  act  of  generation.  But : 
a/  this  act,  as  Lessius  says  (1.  c),  appertains  to  the  less  noble 
pari  of  man,  wherein  he  approaches  nearest  to  the  brute  creation, 
while  virtuous  continency  and  abstinence  from  the  pleasures  of 
the  flesh  belong  to  the  spirit,  the  noblest  part  of  his  being,  and 
make  him  like  to  the  angels.  "Whence  St.  Augustine  says  (*)  : 
€  virginalis  integritas,  et  per  piam  continentiam  ab  omni  concu- 
bitu  immunitas,  angelica  portio  est,  et,  in  carne  corruptibili, 
incorruptionis  perpetuae  meditatio  »  ;  and  our  Lord  himself  has 
said  :  «  in  resurrectione  neque  nubent  neque  nubentur,  sed  erunt 
sicut  Angeli  Dei  in  coelo  (')  ». 

b/  In  the  act  of  sexual  intercourse  reason  is  sunk  in  passion  ;  and 
this  is  why,  apart  from  the  motive  given  above  under  a/,  on  such 
an  occasion  one  is  ashamed  of  any  wittness  ;  for  it  is  indeed  sha- 
meful for  reason  c  to  be  so  overcome  by  carnal  pleasure,  as   to 

lose  itself  and  its  authority  ».  Lessius,  ibidem. 

57. 
Let  us  now  turn  to  the  common  objections  :  Objections 

1.  ThQ  first  and  principal  objection  is  that  given  by  St.  Thomas,  1.  c,  ad 
3™,  viz.,  the  general  good  is  preferable  to  the  private  good  ;  but  marriage 
is  for  the  general  good,  that  is  to  say,  for  the  multiplication  of  the  human 
race,while  virginity  is  of  advantage  only  to  the  individual.  — This  objection 
is  answered  by  the  following  distinction  made  by  the  holy  Doctor :  the 
general  good  is  preferable  to  the  private  good,  if  they  belong  to  the  same 
genus,  but  not  otherwise,  as  is  the  case  in  the  present  instance  ;  for  mar- 
riage concerns  corporal  good,  virginity  spiritual. 

If  the  objection  is  further  maintained,  and  it  is  claimed  that  marriage 
also  makes  for  the  spiritual  good,  inasmuch  as  it  is  its  business  to  bring  up 
children  for  the  glory  of  God,  we  reply  that,  as  already  stated,  the  com- 
parison must  be  made  between  the  proper  qualities  and  distinctive  marks 
that  differentiate  virginity  and  marriage.  Now,  the  property  of  marriage, 
as  compared  with  virginity,  is  to  provide  for  the  corporal  being  and  well- 
being  of  the  child.  Moreover,  virginity  is  not  purely  a  private  good.  To  the 
general  spiritual  good  it  contributes  not  less,  but  rather  much  more,  than 


answered. 


1.  Lessius.  Dejustitia  et  jure,  ccuterisque  virtutibus  cardinalibus,  1.  IV,  ch.  11, 
dub.  15  ;  I  Cor.,  VII,  33  ss. 

2.  DeSancta  Virginitate,  c.  13.  Migne,  XL,  col.  401. 

3.  Matth.,  XXn,  30. 


88         NATURE  OF  THE  MATRIMONIAL  CONTRACT 

the  married  state,  even  in  the  business  of  the  bringing  up  of  children.  It 
makes  a  man  eminently  fit  for  the  instruction  and  religious  education  of 
the  young,  and  for  assisting  them  in  all  their  spiritual  necessities,  as  daily 
experience  proves  in  the  case  of  secular  priests,  and  in  that  of  religious  of 
both  sexes  ('). 

2.  It  may  also  be  objected,  that  under  the  Old  Law  it  was  reckoned  a 
disgrace  to  be  without  children,  according  to  the  saying  :  «  Cursed  is  he 
who  leaves  not  children  in  Israel  ». 

We  reply  that  the  objection  falls  to  the  ground,  if  we  assume  that, 
presupposing  marriage,  the  disgrace  consisted  in  the  sterility.  «  Since  God 
had  promised  to  those  who  lived  in  marriage  blessing  and  fruitfulness,  on 
condition  that  they  kept  the  law  of  God,  there  was  a  suspicion  that  they 
who  had  no  children,  were  punished  by  God  as  transgressors  of  the  law, 
and  in  this  there  was  certainly  great  disgrace  »  (*).  If,  on  the  other  hand, 
we  must  sometimes  take  the  saying  absolutely  under  any  hypothesis,  (as  in 
the  case,  perhaps,  of  Jephte's  daughter  bewailing  her  virginity),  the  mis- 
fortune and  disgrace  were  not  the  effect  of  the  state  of  virginity,  as  such, 
but  resulted  rather  from  the  peculiar  circumstances  of  the  Jewish  people, 
no  one  of  whom  could,  without  marriage,  entertain  the  hope  of  having  the 
distinguished  honour  of  numbering  the  Messias  among  his  descendants. 

3.  Certain  objections  of  Sl  physiological  nature  are  also  sometimes  raised. 
It  is  asserted  that  absolute  continence  exposes  the  unmarried,  the  man 
especially,  to  continual  troubles  of  the  flesh  ;  and  is  a  danger  to  his  bodily 
and  mental  health,  in  consequence  of  the  superabundance  of  sperm  (^). 

The  answer  is  easy.  Firstly,  the  seminal  secretion  diminishes  with  those 
who  observe  continence ;  and  the  excess  is  in  part  reabsorbed,  and  goes 
to  vitalize  the  mind  and  body,  while  the  rest  is  spontaneously  thrown  off 
by  nocturnal  pollution  (*).  Secondly,  concupiscence  is  weakened  little  by 


I.  Virginity  also  contributes,  as  Billot  rightly  remarks  (o.  c.,  II,  p.  363  s.), 
to  the  common  good  of  society  :  «  in  the  first  place  because  it  continually  calls 
to  mind  our  heavenly  country,  in  which  'they  shall  neither  marry  nor  be 
married'...  ;  secondly,  because  it  shows  how  one  may  curb  those  unruly  passions, 
which  ordinarily  are  the  great  stumbling-block  of  marriage  itself ;  and  finally, 
because  it  disposes  a  man  to  the  contemplative  life,  and  gives  him  a  taste  for 
assiduous  prayer,  that  brings  down  divine  blessings  on  the  human  race  >. 

a.  Becanus,  Analogia  Vettrisac  Novi  Testamenti,  ch.  XXI,  n.  7. 

3.  Cf.  Treub,  o.  c.  ;  Nystrom,  o.  c,  chap.  3  :  Die  Geschlechtbediir/nis  und  die 
Enthalsamkeit.  See  also  Grisar,  Luther,  II,  p.  199-203,  on  the  various  sayings  of 
Luther,  who  declared  continency  impossible  and  against  nature,  and  pretended 
that  the  use  of  marriage  was  every  bit  as  necessary  as  eating  and  drinking. 

4.  Cf.  Leitner,  Lehrb.,  p.  13  ss.,who  clearly  demonstrates,  against  the  Protest- 
ants, that  virginity  and  celibacy  are  not  in  che  least  injurious  to  vigour  of  body 


NATURE  OF  THE  MATRIMONIAL  CONTRACT         89 

little  with  those  who  manfully  refrain  from  venereal  pleasures,  so  that  the 
celibate,  who  does  not  neglect  supernatural  means,  overcomes  the  assaults 
of  the  fiesh,  and  restrains  himself  more  readily  than  the  married  man  who 

makes  use  of  marriage  with  moderation  (•). 

6S. 
Observation.  As  concerns   the  question  of  precept,  we  have  to  Marriage  is 

observe  that  marriage  is  of  obligation  for  the  human  race  taken  colled-  *r"^  indiviiu- 
ively  ;  for  the  end  proposed  by  the  Creator,  the  propagation  of  the  <»^s,  except 
human  race,  may  not  be  evaded.  As  far  as  individuals  are  concer- 
ned, it  is  not  of  obligation  in  itself,  but  it  may  be  so  accidentally  : 
that  is  to  say,  it  may  happen  that  one  or  another,  by  reason  of  the 
peculiar  circumstances  in  which  he  finds,  himself,  may  be  bound 
to  marry;  for  instance,  in  order  to  allay  the  excessive  force  of  his 
passions,  to  legitimate  a  child  that  has  been  bom  to  him  out  of 
wedlock,  or  to  make  reparation  for  the  wrong  done  to  the  mother ; 
or  again,  to  prevent  an  excessive  shortage  of  births  ;  in  this  case, 
however,  one  would  be  bound  to  marry,  not  as  an  individual,  but 
only  as  a  representative  of  the  community. 

Protestants  controvert  this  doctrine,  but  to  no  purpose.  They 
object  the  words  of  Genesis,  I,  28  :  Increase  and  multiply.  But  these 
words  imply  rather  a  blessing  than  a  precept ;  or,  if  they  contain 
a  precept,  they  affect,  not  individuals,  but  the  community,  as 
represented  by  our  first  parents.  Nor  let  it  be  said  that  the  end 
proposed  by  the  Creator  is  liable  to  be  frustrated,  if  the  obliga- 
tion binds  not  the  individual,  but  only  the  community.  As  expe- 
rience proves,  the  promptings  of  concupiscence  and  the  force  of 
natural  inclination  are  amply  sufficient  for  the  attainment  of  the 
proposed  end  ('). 


and  mind,  and  do  not  lead  to  misconduct.  See  also  Eschbach,  Disputationes,  p. 
471-481  ;  Francotte,o.  c,  p.  15  ss.  ;   De  Katholiek,  1904,   p.  303  ss.  ;  Die  Ehe, 

p.  81  SS.  ;    FOREL,    O.  C,    p.    468;    GeMELLI,    O.  C,    pp.    64-68;    LOSLEVER,    O.   C, 

p.  319  ss. 

I.  Cf.  Eschbach,  o.  c,  p.  482-484,  where  he  adds  :  «  What  we  have  so  far 
said,  is  true  in  ordinary  cases.  But  we  freely  admit  that  it  is  not  given  to  all  to 
take  the  word  of  the  Lord  extolling  celibacy,  and  that  there  are  men  of  an  erotic 
temperament  to  whom  the  use  of  marriage  is  morally  necessary  for  health  of 
soul  and  body.  To  these  the  words  of  St.  Paul  apply  :  It  is  better  to  marry  than 
to  be  burnt ». 

3.  The  proverb  :  «  Quod  omnes  tangit,  neminem  angit  »  (everybody's  busi- 
ness is  nobody's  business),  is  true  where  it  is  a  quesiion  of  a  burden,  but  not 
where  the  attraction  of  individual  pleasure  is  concerned. 


go 


THE  CONSTITUENT  ELEMENT 


Chapter  II. 

THE  CONSTITUENT  ELEMENT  OF  THE  MATRIMONIAL 
CONTRACT,  OR  CONSENT. 


59. 

The  matrimo- 
nial contract 
requires  con- 
sent, 


which  is  of 
itself  suffici- 
ent. 


Dunonstra- 
tion. 


Article  1 .  Matrimonial  consent  in  general. 

First  proposition  :  Mutual  and  actual  consent  to  the  matrimonial 
bond  constitutes  by  itself  the  contract  of  marriage,  to  the  exclusion  of 
the  conjugal  act. 

Explanation. 

A.  There  must  be  an  actual  consent,  that  is,  a  consent  de  prae- 
senti,  relating  to  the  contracting  of  marriage  in  the  present  :  con- 
sent relating  to  the  future,  as  we  have  seen  above,  can  only  con- 
stitute betrothment.  The  necessity  of  this  consent  is  absolute, 
and  nothing  can  make  good  the  want  of  it.  This  is  affirmed  by 
Pius  VI,  in  his  Letter  of  the  ii  July  1789  :  «  This  contract  differs 
greatly  from  any  other  merely  civil  contract  in  this,  that  in  a 
civil  contract  the  absence  of  consent  may  sometimes,  for  certain 
reasons,  be  supplied  by  the  law,  but  no  human  power  can  do  this 
in  the  case  of  marriage  »  (*). 

B.  Mutual  consents  sufficient,  and  sufficient  of  itself,  provided  it 
has  the  requisite  qualities,  as  we  shall  explain^below  in  the  second 
proposition,  and  provided  also  it  is  given  in  the  form  required  for 
its  validity,  as  will  be  shown  in  article  2.  Besides  this  consent, 
sufficient  in  itself,  another  element  might  be  required  by  the  posi- 
tive law,but  we  shall  show  that  this  is  not  the  case,and  in  particu- 
lar that  sexual  intercourse  does  not  constitute,  in  positive  law,  a 
constituent  element  of  marriage. 


Proofs. 

1.   The  evidence  of  the  Fathers. 


St.  Augustine,  De  nuptiis  et  con- 


cupiscentia,  1.  I,  chap.  II,  says  :  «She  (the  Blessed  Virgin)  was  call- 


I.  Cf.  St.  Thomas,  Suppl.,  qu.  XLV,  art.  I.  «  One  cannot  receive  power  over 
that  which  is  the  free  property  of  another,  except  by  his  consent ;  but  marriage 
gives  to  each  of  the  parties  power  over  the  body  of  the  other...  while  before  mar- 
riage each  had  the  free  possession  of  his  own  body  ;  it  is,  therefore,  the  consent 
that  constitutes  the  marriage  ». 


THE   CONSTITUENT  ELEMENT  9 1 

ed  spouse  from  the  moment  that  she  plighted  her  troth,  through 
her  husband  knew  her  not,  and  was  not  to  know  her.  The  name 
of  spouse  did  not  cease  to  be  hers,  nor  was  it  wrongfully  assumed, 
though  the  marriage  act  was  wanting  in  the  past  as  in  the  fu- 
ture »  (*)'St.  Ambrose,  De  InsiiiutioneVirginis,  ch.6,writes  :  «From 
the  instant  that  marriage  is  contracted,  it  rightly  bears  the  name 
of  marriage  ;  it  is  not  the  subsequent  loss  of  virginity  that  consti- 
tutes the  marriage,  but  rather  the  matrimonial  contract ;  the  mar- 
riage exists  from  the  time  of  the  union,  and  not  merely  from 
the  commencement  of  carnal  intercourse  »  (*).  Pseudo-Chry- 
SOSTOM,  opus  imperfectum  in  Matth.,  hom.  XXXII  (*),  says  : 
«  it  is  not  carnal  intercourse  that  constitutes  marriage,  but 
consent  »  (*). 

2.  The  rescript  of  Pope  Nicholas  I  in  reply  to  the  petition  of  the 
Bulgarians  (866),  ch.  3,  given  by  Gratian,  ch.  2,  C.  XXVII,  2, 
speaks  thus  :  «  Let  the  mutual  consent  ot  the  parties  concerned 
alone  suffice,  provided  it  has  the  requisite  qualities.  If  that  alone 
is  wanting,  all  the  rest,  including  even  carnal  intercourse,  is 
valueless  »  ("). 

3.  The  Peniteniials  teach  that  marriage  is  validly  constituted 
without  the  intervention  of  sexual  intercourse.  See  the  different 
chapters  quoted  by  Wasserschleben,  o.  c,  p.  290,  577,  640, 
641 ;  and  compare  with  Sehling,  Die  Unterscheidung ,  p.  38, 
note  2. 

4.  The  conception  of  marriage  in  the  Roman  law  :  which,  as  is 
well  known,  has  often  been  adopted  by  the  Church  in  this  mat- 
ter. According  to  the  Roman  law,  consent  constituted  marriage 
without  the  intervention  of  sexual  intercourse,  and  even,  though 
some  authorities  think  otherwise,  without  the  solemn  procession 
conducting  the  bride  to  her  husband's  house.  See  I.  11,  D,  XXIII, 


1.  This  text  is  quoted  in  the  Decree  of  Gratian,  9,  Causa  XXVII,  qu.  2. 

2.  Taken  from  the  same  Decree  of  Gratian,  5,  C.  XXVII.  2. 

3.  Migne,  LVI,  col.  802 ;  of.  note  of  Friedberg,  to  i  and  4,  C.   XXVII,  2 ; 
Bardenhewer,  Patrologie^,  Herder,  1910,  p.  310  ;  Der  Katholik,  1908,  II,  p.  309, 

4.  As  to  the  interpretation  of  the   Fathers  in    the  sense  of  copulatheoria, 
of.  Watkins,  o.  c.,  p,  116  ss. 

5.  Migne,  CXIX,  col.  980.  See  also  the  letter  of  Leo  I  to  the  Bishop  of  Nar- 
bonne,  Migne,  LIV,  eol.  1204-1205  ;  Hardouin,  o.  c,  I,  col.  1762. 


92  THE  CONSTITUENT  ELEMENT 

tit.  2  C)  ;  1.  15,  D,  XXXV,   tit.  I  n  ;  and  1.  30,  D,  L,  tit.   17  ('). 

5.  The  common  opinion,  that  admits  the  existence  of  a  true  mar- 
riage between  the  Blessed  Virgin  and  Saint  Joseph  (*). 

6.  The  doctrine  of  the  Council  of  Florence,  which  teaches  that  the 
efficient  cause  of  marriage  is  mutual  and  actual  (de  praesenti)  con- 
sent (*) ;  as  well  as  that  of  the  Council  of  Trent,vfh\ch.  declares  that 
the  sacrament  of  matrimony  is  constituted  by  the  contract  itself, 
and  is  in  no  way  distinct  from  it,  and  that  marriage  not  consum- 
mated is  true  marriage. 

7.  The  Catechism  of  the  Council  of  Trent,  P.  II,  ch.  VII,where  we 
read  in  paragraph  8 :  «  In  order  that  a  marriage  may  be  a  real  one 
carnal  intercourse  is  not  required  ». 

*  * 

60.  .  ,-  , 

An  account  of     This  teaching  is  opposed  by  those  who  hold  the  copulatheoria,  which 

*^**  ^°P"^^'''^-  appears  to  owe  its  origin  to  Hincmar  of  Rheims.  According  to  this  theory 

marriage  is  contracted  by  carnal  intercourse,  or  rather  if  it  is  begun  by 

consent,  it  is  perfected  by  the  conjugal  act{^).  In  other  words,  marriage 


1.  «  Betrothment,  like  marriage,  is  contracted  by  the  consent  of  the  parties  ». 

2.  «  Cum  fuerit  sub  hac  conditione  legatum :  si  in  familia  nupsisset,  videtur 
impleta  conditio  statim  atque  ducta  est  uxor,  quamvis  nondum  in  cubiculum 
mariti  venerit ;  nuptias  enim  non  concubitus,  sed  consensus  facit  ».  From  this 
text  it  is  clear  that  marriage  exists  independently  of  carnal  intercourse,  and  of 
the  entrance  of  the  wife  into  her  husband's  house  ;  but  these  two  facts  constitute 
a  presumption  that  tJte  consent  has  been  given.  Cf.  also  Sehling,  Die  Untcrschtidung, 
p.  14  ss. ;  Friedberg,  Das  Recht,  p.  5,  and  especially  Desforges,  o.  c,  p.  37-57. 

3.  «  Nuptias  non  concubitus  sed  consensus  facit  ».  Ct.  Darenberg  et  Saglio, 
o.  c,  Vo  Matrimonium,  IIP,  p.  1659. 

4.  The  validity  of  the  marriage  of  the  Blessed  Virgin  with  Saint  Joseph  ought, 
in  truth,  to  be  judged  in  accordance  with  the  principles  of  the  Jewish  law  ;  but  as 
the  Fathers  have  rather  considered  it  from  the  point  of  view  of  ecclesiastical  law 
regulating  Christian  marriage,  we  may  well  make  use  of  their  evidence  here  : 
which  is  not  sufficiently  taken  into  account  by  Watkins,  o.  c,  p.  I2i  s. 

5.  «  Causa  efficiens  matrimonii  regulariter  est  mutuus  cunsensus  per  verba  de 
praesenti  expressus  >.  Note  here,  that  the  word  *  regulariter  »  does  not  refer 
to  the  consent  in  such  a  way  as  to  imply  that  marriage  might  exceptionally  be 
contracted  without  consent,  but  refers  to  the  method  of  making  known  the 
consent,  which  regularly  and  ordinarily  consists  in  the  utterance  of  the  words. 

6. In  this  theory, therefore, sexual  intercourse  may  be  regarded  either  as  the  so- 
le element  that  constitutes  marriage  in  its  entirety,or  as  an  essential  element  that 
completes  and  perfects  marriage  already  begun  by  consent.  It  is  open  to  question 


THE   CONSTITUEIiT  ELEMENT  93 

contracted  by  mutual  consent  alone  is  not  a  true  and  complete  marriage  ; 
it  becomes  such  only  through  sexual  intercourse,  which  alone  gives  it  the 
dignity  of  a  sacrament  ('),  and  renders  it  indissoluble  (-) ;  before  sexual 
intercourse  takes  place  the  marriage  is  only  in  its  inceptive  stage  ;  it  is  still 
dissoluble ;  and  the  parties  should  still  be  regarded  rather  as  betrothed  than 
as  actually  husband  and  wife ;  they  become  such  in  tact  only  after  inter- 
course. 

This  theory  was  formerly  defended  by  many  celebrated  authors,  and  Supporters  of 
among  them  by  Regino  Prumensis  (+916)  and  Algerus  of  Liege  {\  1130).     ad^tJ^^* 
At  a  later  period  it  became  general  in  the  school  of  Bologna,  especially   arguments. 
after  it  had  been  publicly  maintained  by  Gratian,    in  the  Decrdum, 
quaestione  2',  Causa  XXVII.  This  author,  after  giving  the  arguments  for 
and  against  it,  decided  m  favour  of  the  copulatheoria,  but  vmder  a  reser- 
vation that  we  shall  notice  later. 

These  are  his  reasons  :  a/  In  chapters  16  and  17  he  appeals  to  the  autho- 
rity of  St.  Augustine  (^)  and  of  Pope  Leo  I,  in  his  rescript  to  the  Bishop 
of  Narbonne,  already  referred  to,  the  text  of  which  he  gives,  but  in  an 
adulterated  form  :  c  Cum  societas  nuptiarum  ita  a  principio  sit  instituta  ut, 
praeter  commixtionem  sexuum,  non  habeant  in  se  nuptiae  Christi  et 
Ecclesiae  sacramentum,  non  dubium  est  illam  mulierem  non  pertinere  ad 
matrimonium  in  qua  docetur  non  fuisse  nuptiale  mysterium  »  (*). 


if  Hmcmar  held  the  former  opinion,  though  Fahrner  and  Sehling  speak  of  him  as 
doing  so.  We  think  the  contrary'  much  more  probable,  and  agree  therein  with 
ScHRORS,  o.  c,  p.  316  ss.,  who  brings  many  texts  in  support  of  his  statement. 
However  that  may  be,  the  less  rigid  opinion  is  the  one  maintained  by  the  doc- 
tors of  Bologna,  as  we  shall  presently  point  out.  In  following  this  course  they 
took  a  middle  way  between  the  extreme  opinion,  attributed  by  some  to  Hincmar, 
and  the  teaching  of  the  Roman  Church,  according  to  which  consent  constitutes 
marriage  without  the  copula. 

1.  Without  the  conjugal  act,  they  said,  there  was  no  symbol  of  the  union  of 
Christ  with  the  Church,  of  that  corporal  union  which  our  Lord,  so  to  speak,  con- 
tracted with  it  by  His  Incarnation. 

2.  Hincmar,  an  ardent  defender  of  the  indissolubility  of  marriage,  found  in  his 
system  a  solution  of  the  difficulty  that  existed  of  reconciling  the  principle  of 
indissolubility  with  the  practice  of  the  Galilean  Church,  in  dissolving  marriage 
on  the  grounds  of  impotence. 

3.  «  Non  dubium  est  illam  mulierem  non  pertinere  ad  matrimonium,  cum  qua 
docetur  non  fuisse  commixtio  sexus  ». 

4.  The  authentic  text,  according  to  Migne,  1.  c.  ;  Hardouin,  1.  c,  and  Fried- 
berg,  on  this  passage,  says  exactly  the  contrary  :  «  Cum  societas  nuptiarum  ita 
ab  initio  constituta  sit  ut,  praeter  sexuum  commixtionem,  haberet  in  se  Ohristi 
et  Ecclesiae  sacramentum,  non  dubium  est...  » 


94  THE  CONSTITUENT  ELEMENT 

b/  In  chapters  19-21  he  gives  the  different  cases  in  which  it  has  been 
permitted  to  dissolve  marriage  that  has  not  been  consummated,  whether 
on  account  of  a  vow  of  reUgion,  or  on  account  of  impotence  :  whence  he 
concludes  in  the  Dictum  (')  on  chapters  28  and  29,  that  between  parties 
united  by  consent  alone,  there  is  no  marriage,  that  is,  no  perfect  marriage, 
just  as  he  denies  that  the  Blessed  Virgin  and  Saint  Joseph  were  really 
married. 

c/  He  interprets  in  his  own  sense  the  evidences  that  seem  unfavourable 
to  his  thesis,  and  gives  them  in  ch.  1-15.  He  holds  that  if  the  condition  of 
marriage  is  attributed  to  a  union  formed  by  consent  alone,  it  is  attributed 
to  it  only  as  an  inceptive  marriage,  and  not  as  a  marriage  perfect  and 
properly  so  called.  <  It  must  be  known,  >  he  says,  «  that  marriage  com- 
mences with  mutual  consent,  and  is  made  perfect  by  carnal  intercourse  ; 
whence  it  follows  that  the  consensual  contract  produces  marriage  indeed, 
but  only  inceptive,  while  the  conjugal  act  brings  into  being  marriage  that 
is  ratified  (ratum)  (*).  He  maintains  that  if  the  texts  quoted  give  to  parties, 
who  have  contracted  by  consent  alone,  the  title  of  husband  and  wife,  they 
do  so  «  only  in  anticipation  of  what  is  to  follow,  and  not  in  virtue  of  the 
contract  already  made  »  {').  With  regard  to  the  quotation  from  pseudo- 
Chrysostom,  given  above,  which  declares  that  it  is  not  carnal  intercourse, 
but  consent,  that  constitutes  marriage,  Gratian  claims  that  it  is  to  be  under- 
stood in  the  following  sense  :  «  sexual  intercourse  without  the  intention  of 
contracting  marriage,  and  the  loss  of  virginity  without  the  conjugal  com- 
pact do  not  constitute  marriage  ;  but  the  antecedent  intention  of  contrac- 
ting marriage  and  the  preliminary  conjugal  compact  give  reason  to  say 
that  the  woman,  at  the  moment  that  she  is  deprived  of  her  virginity,  or  is 
carnally  known,  is  married  to  her  husband,  or  contracts  marriage  >  (*). 

The  reservation  which,  as  we  have  said,  Gratian  makes  in  his  theory,  is 
explained  in  the  following  chapters  of  his  work,  up  to  ch.  50  inclusively. 
Though  he  does  not  admit  the  woman  who  is  bound  by  matrimonial  consent 
alone,  is  united  in  the  bonds  of  a  true  and  complete  marriage,  yet  he  does 
not  allow  her  to  retract  and  marry  another  under  all  circumstances. 
He  excepts  two  hypotheses  :  1.  in  case  of  abduction,  the  woman  must  be 
restored  to  her  former  husband,  and  remain  faithful  to  him  ;  2.  if  her 
husband  has  already  taken  her  into  his  house,  and  they  have  received 
the  veil  and  the  blessing  together,  she  can  no  longer  change  her  mind  : 


I.  The  Dicta  of  Gratian  are  the  conclusions  that  he  regards  as  deducible  from 
the  texts  quoted,  and  as  contained  in  them. 
3.  Dictum  on  ch.  34. 

3.  Dictum  on  ch.  39  and  on  ch.  45. 

4.  Dictum  on  ch.  45. 


THE   CONSTITUENT  ELEMENT  95 

«  the  rupture  in  that  case  would  violate  the  blessing  that  the  priest  gives  to 
the  bride  (')  ».  Dictum  on  ch.  50  (*). 

The  distinction  between  inceptive  and  complete  marriage  was  preserved 
by  the  disciples  of  Gratiani^),  who  stated  it  with  yet  greater  precision, 
and  accorded  the  benefit  of  indissolubility  to  such  marriage  only  as  had 
been  completed  by  conjugal  intercourse,  while  they  permitted  inceptive 
mariage  to  be  dissolved  for  a  variety  of  reasons,  that  may  be  found  in 
EsMEiN,  o.  c,  I,  p.  117,  such  as,  a  vow  of  chastity,  captivity,  the  super- 
vention of  spiritual  relationship  or  affinity,  and  even,  according  to  many 
of  them,  a  subsequent  consummated  mariage  (*). 

The  copulatheoria  was  opposed,  among  others,by  Peter  Damian,William  opponents  of 
de  Campellis,  Hugh  of  St.  Victor,  and  above  all  by  Peter  Lombard  {^).  In    *''*  ^^°^y- 


I.  It  appears,  then,  that  Gratian  introduced  this  exception  in  favour  of  a  mar- 
riage that  had  been  blessed,  though  not  consummated,  out  of  respect  for  the 
blessing  given.  The  later  Decretists  relied  rather  on  the  fact  that  the  wife,  in  the 
case  proposed,  had  already  been  taken  into  the  house  of  her  husband,  which  in 
their  eyes,  by  analogy  with  the  Roman  law,  completed  the  marriage  that  had 
been  begun.  Cf.  Esmein,  o.  c,  p.  114  and  118. 

3.  Chapter  51,  which  expounds  a  doctrine  quite  at  variance  with  the  views  of 
Gratian,  is  a  Palea,  that  is  to  say,  a  text  that  does  not  belong  to  the  Decrctum  as 
it  left  the  hands  of  Gratian,  but  was  added  by  a  later  writer.  Cf.  Friedberg  on 
this  passage. 

3.  Cf.  Freisen,  o.  c,  p.  XXVm-XXXIV. 

4.  This  last  reason  was  not  admitted  by  Roland,  afterwards  Alexander  III. 

5.  The  opinion  of  Gratian  is  set  forth  by  Peter  Lombard  in  the  work  known 
as  Sententiarum  libri  quatuor,  1.  IV,  Dist.  XXVII,  F.,  G.,  H.,  almost  in  the  very 
words  of  the  Dictum  to  ch.  45,  whence  it  seems  quite  clear  that  the  writing  of 
Lombard  is  of  a  later  date  than  that  of  Gratian  :  «  Nevertheless  there  are  some 
who  assert  that  there  is  no  true  marriage  befoj-e  the  transference  of  the  bride 
and  the  occurrence  of  the  copula,  and  that  none  are  truly  married  until  sexual 
intercourse  has  taken  place ;  but  that  the  plighting  of  their  troth  leaves  them 
merely  betrothed  and  not  married...  The  authorities  on  which  we  rely  in  asser- 
ting that  consent  constitutes  marriage,  are  interpreted  by  them  as  meaning,  that 
the  consent  or  conjugal  agreement  constitutes  the  marriage,  not  before  sexual 
intercourse,  but  in  it.  For  as  the  defloration  of  a  virgin  does  not  constitute  mar- 
riage, unless  the  conjugal  compact  precedes  it,  so  neither  does  the  conjugal 
compact,  before  the  conjugal  connection  takes  place.  In  virtue  of  the  conjugal 
compact,  therefore,  they  become  betrothed  parties  before  sexual  intercourse, 
but  husband  and  wife  in  it.  For  the  conjugal  compact  brings  it  to  pass,  that  she 
who  before  was  betrothed,  in  the  act  of  sexual  intercourse  becomes  a  wife  ».  Cf. 
P.  Fournier,  Deux  controverses  sur  les  origines  du  Decret  dc  Gratien,  in  the  Rev. 
d'Histoirc  et  de  Litterature  religieuse,  1898,  p.  in  ss.;  Ds  Ghelunck,  Theologie 
et  droit  canon  au  Xl^  6t  XII^  Steele,  in  Bindes,  t.  CXXIX  (1911),  p.  193. 


96  THE  CONSTITUENT  ELEMENT 

opposition  to  the  School  of  Bologna,  these  authors  insisted  on  the  evidence 
quoted  above  in  favour  of  the  principle  of  the  earlier  theological  authori- 
ties :  viz.,  that  consent,  not  carnal  intercourse,  constitutes  marriage  ;  and 
moreover  directly  refuted  the  arguments  brought  forward  by  their  oppo- 
nents. Without  speaking  of  the  first  text  invoked  by  Gratian,  and  attributed 
to  St.  Augustine,  but  novi^here  to  be  found  in  the  writings  of  the  holy 
Doctor  (*),  and  passing  over  the  text  of  St.  Leo  I  to  Rusticus,  which  was, 
as  we  have  seen,  adulterated,  the  reasoning  of  the  Master  of  the  Sentences 
is  as  follows  : 

1 .  He  vindicates  the  sacramental  character  of  marriage,  even  where  it 
is  without  the  conjugal  act.  He  distinguishes  a  two-fold  union  of  Christ 
with  the  Church,  the  one  corporal,  the  other  spiritual  effected  through 
will  and  love.  This  second  or  spiritual  union  symbolizes  marriages  con- 
tracted by  consent  alone  (*). 

2.  With  regard  to  the  authorities  invoked  by  Gratian  in  favour  of  the 
dissolubility  of  mariage  not  consummated,  Peter  Lombard  interprets  their 
utterances  in  accordance  with  the  distinction  made  by  William  and  by 
Hugh  of  St.  Victor  between  sponsalia  de  praesenii  and  sponsalia  defuturo  ; 
that  is  to  say,  between  the  compact  relating  to  future  marriage  and  the 
consent  relating  to  actual  marriage,  and  contends  that  the  causes  of 
dissolubility  are  applicable  to  the  former  only,  and  not  to  the  latter  (2). 


I.  Friedberg  thinks  that  this  text  was  the  summa  of  the  following  chapter  17. 

3.  «  As  there  are  between  married  persons  the  union  of  mind  and  the  union  oi 
body,  so  there  is  also  between  the  Church  and  Christ  a  two-fold  union,  the 
union  of  will,  since  the  Church  wills  what  Christ  wills,  and  the  union  of  nature 
inasmuch  as  Christ  has  become  man.  Thus  we  have  a  spiritual  union  and  a 
corporal  union,  i.  e.,  a  union  by  charity  and  a  union  by  conformity  of  nature. 
This  two-fold  union  is  symbolized  in  marriage  :  the  union  of  mind  between  hus- 
band and  wife  represents  the  spiritual  union  of  Christ  with  the  Church,  this 
which  is  effected  through  charity  ;  the  corporal  union  represents  equally  that 
which  is  effected  through  conformity  of  nature  ».  L,  IV,  Dist.  XXVI,  F. 

Hugh  of  St.  Victor  proposes  another  distinction  :  marriage  consummated 
signifies  the  union  of  Christ  with  the  Church,  and  marriage  not  consummated 
the  union  of  charity  between  God  and  the  faithful  soul.  Cf.  Fahrner,  o.  c,  p. 

133. 

3.  «  Betrothment  (desponsatio)  sometimes  takes  place,  in  which  the  mutual 
promise  of  the  man  and  woman  concerns  the  contracting  of  marriage,  but  in 
which  there  is  no  consent  de  praesenti.Thcre  is  also  a  desponsatio  that  has  consent 
de  praesenii,  that  is  the  conjugal  compact,  which  alone  constitutes  marriage.  In 
the  former  desponsatio,  where  the  promise  is  to  contract  marriage,  the  parties 
are  only  betrothed,  not  married...  but  in  the  latter  desponsatio,  in  which  the  con- 
sent is  depraesenti,  marriage  is  contracted,  and  from  the  first  plighting  of  their 


THE   CONSTITUENT  ELEMENT  97 

The  teaching  of  Peter  Lombard  and  the  School  of  Paris  was  thus 
entirely  opposed  to  that  of  Gratian  and  the  School  of  Bologna.  According 
to  the  former f  marriage  contracted  by  an  actual  contract  was  a  perfect 
marriage,  and,  between  Christians,  a  sacrament  and  a  marriage  absolutely 
indissoluble  ;  while  according  to  the  Doctors  of  Bologna,  it  was  only  a 
half-marriage  but  begun,  that  had  not  yet  reached  the  sacramental  dignity, 
and  liable  to  dissolution  for  a  variety  of  reasons. 

This  celebrated  doctrinal  dispute  finally  gave  rise  to  a  mixed  theory , 
that  borrowed  its  elements  from  the  two  opposed  parties.  This  mixed 
theory  was  sanctioned  by  the  Supreme  Pontiffs,  and  notably  by  Alexan- 
der III,  who,  as  Magister  Rolandus,  had  been  an  adherent  of  the  School 
of  Bologna.  On  the  one  hand,  this  theory  admits  the  distinction  between 
sponsalia  de  praesenti  and  sponsalia  defuturo,  i.  e.,  between  the  contract 
of  betrothment  properly  so  called,  and  the  actual  contract  of  marriage,  and 
it  recognises  in  marriage  not  consummated  the  quality  of  a  perfect  mar- 
riage and  of  a  true  sacrament ;  on  the  other  hand,  it  denies  it  the  absolute 
indissolubility,  which  Peter  Lombard  attributed  to  it,  and  grants  this  only 
to  marriage  ratum  et  consmnmatum  :  the  copula  is  not  an  essential, 
but  merely  an  integrant  element  of  marriage,  from  wich  marriage  derives 
some  accidental  perfection  and  a  stricter  indissolubility.  Hence  was 
gradually  evolved  the  discipline,  at  present  in  force,  according  to  which 
marriage  ratum  non  consummatum  is  dissolved  by  a  solemn  vow  and  by 
Papal  dispensation  (').  Thus,  the  controversy  was  ended  (*). 

Note.  Watkins,  o.  c,  p.  125-126,  shows  confusion  of  thought  in  the 
argument  that  he  adduces  in  connexion  with  the  copulatheoria,  as  if  from  the 
fact  that  impotence  in  the  matter  of  the  conjugal  act  renders  the  marriage 
essentially  null,  it  followed  that  the  conjugal  act  itself  belongs  to  the 
essence  of  marriage.  The  fact  really  is,  that  for  marriage  there  is  required 
the  transfer  of  the  right  over  one  another's  bodies,  and  consequently  the 
possibility  of  conjugal  use,  but  not  the  exercice  of  the  right.  Cf.  below, 
n°^  89  and  277. 


troth  in  such  desponsatio,  the  parties  are  called  true  husband  and  wife  ».  L.  IV, 
Dist.  XXVII,  I. 

I.  We  shall  explain  this  development  of  the  law  later,  in  no  187. 

3.  Even  at  the  present  day,  and  among  Catholics,  there  have  been  those  who 
have  defended  the  copulatheoria,  foremost  among  whom  is  Freisen,  a  writer 
whom  we  have  frequently  quoted,  and  who  is  well  known  as  the  author  of  a 
remarkable  work  :  Geschichtc  des  canonischen  Bfiercchts. 

In  the  preface  to  the  second  edition  of  his  work,  in  1893,  however,  he  retracted 
his  theory,  p.  xxiii-xxxiv,  not,  he  says,  for  historico-juridical    reasons,    for 

7 


gS  THE  CONSTITUENT  ELEMENT 

Second  proposition.  Consent  must  be  proper  and  personal,  inter- 
nal and  free,  outwardly  manifested,  absolute,  simultaneous  and  legi- 
timate. 


these,  as  he  shows  p.  xxviii-xxxiv,  are  in  his  favour ;  but  because  he  reco- 
gnises that  he  cannot  bring  his  thesis  into  accord  with  the  teaching  of  the  Church, 
and  in  particular  with  that  of  the  Council  of  Trent,  concerning  the  nature  of 
marriage  and  its  sacramental  dignity.  He  therefore  admits  that  consent  consti- 
tutes marriage,  but  nevertheless  adds  that  to  marriage  thus  essentially  constitu- 
ted, there  is  added,  inconsequence  of  the  conjugal  act,  a  certain  accidental  or 
rather  integral  perfection :  «  sie  (die  copula)  fiigt  der  Ehe  etwas  Neues,  wenn 
auch  nicht  Wesenliches,  sondern  integrirendes  hinzu  »  :  which  may,  indeed,  be 
said,  as  appears  from  what  has  been  said,  and  as  will  be  clear  from  the  doctrine 
we  shall  have  to  propound  below,  concerning  the  indissolubility  of  the  marriage 
bond. 

Freisen  is  wrong,  as  we  have  seen,  in  defending  the  copulatheoria  by  appea- 
ling to  the  Roman  law,  as  if  in  that  the  «  deductio  »  and  the  copula  constituted 
valid  marriage.  He  is  wrong  also  in  invoking  the  Jewish  law,  p.  92  ss.,  to  the 
effect  that  marriage,  according  to  the  Schidduchin  and  Kidduchin,  was  perfected 
only  by  the  ^^dedttctio  »  into  the  nuptial  cltamber. 

Watkins,  o.  c,  p.  H2-135,  also  vindicates  the  copulatheoria,  and  he  is  sup- 
ported by  others  who  are  indicated  by  SaoMuLLER,  o.  c,  4a  P.,  p.  529  ss.  See 
also  LoTTHE,  o.  c,  p.  36  and  67,  who  gives  several  provisions  of  the  ancient 
customary  law  of  Flanders  in  wich  vestiges  of  the  copulatheoria  occur.  Thus,  in 
the  country  of  Courtrai,  the  wife  was  not  subject  to  the  authority  of  her  husband 
until  after  the  first  night  of  the  marriage,  i.  e.,  until  after  the  consummation  of 
the  marriage. 

There  are  other  customs  in  which  the  same  idea  appears  :  such  as  the  cere- 
mony called  Beilager,  which  was  long  in  use  at  the  marriages  of  princes.  It  con- 
sisted in  this :  the  newly  married  pair  lay  down  fully  dressed,  in  the  presence  of 
witnesses,  on  the  nuptial  bed,  and  a  covering  was  extended  over  them.  An  ana- 
logous ceremony  took  place  at  marriages  by  proxy :  not  only  did  the  proxy  give 
the  matrimonial  consent  in  the  name  of  his  principal,  but  he  also  installed  him- 
self in  the  marriage  bed  with  the  bride,  to  symbolize  thus  the  consummation  of 
the  marriage  on  behalf  of,  and  in  the  place  of  the  real  husband.  He  lay  down 
fully  dressed,  and  in  armour,  but  with  the  right  foot  and  right  arm  uncovered  ; 
between  him  and  the  bride  was  placed  a  sword.  Cf.HxNAUER,  o,  c,  p.  353-265, 
and  compare  with  what  we  have  said  above  in  the  note  to  no  50. 

The  ceremony  of  which  we  shall  speak  below  in  no  133,  90,  is  again,  it  appears, 
a  vestige  of  the  copulatheoria  :  the  newly  married,  in  certain  places,  receive 
the  blessing  of  the  priest  as  they  are  lying  on  the  marriage  bed. 

For  the  connection  of  this  theory  with  the  marriage  law  of  Protestants,  con- 
sult SoHM,  Das  Recht,  p.  308  s.,  340  s.  This  author,  in  agreement  with  Roeden- 
BECK,  0.  c,  is  of  opinion  that  the  Protestant  ecclesiastical  law  regards  the 


THE  CONSTITUENT  ELEMENT 


99 


Explanation. 


61. 


1.  Proper  and  personal,  so  that  if  it  be  wanting,  it  cannot  be  sup-  Matrimonial 
plied  by  paternal  authority,  or  by  the  supreme  authority  of  the  Z^proL^and 
Church  or  of  the  State  :  for  it  belongs  exclusively  to  the  bride-     personal, 
groom  and  the  bride  to  transfer  to  one  another  the  ownership  of 

their  bodies,and  to  take  upon  themselves  the  bond  of  marriage  (*). 

2.  Internal,  that  is  to  say,  emanating  from  the  will.  Hence  one     internal, 
who  gives  a  fictitious  external  consent   contracts  an  invalid  mar- 
riage,   even  under  the   discipline   introduced  by  the  Council  of 

Trent  and  by  Pius  X.  Nevertheless,  in  the  forum  externum  credence 
is  not  readily  given  to  one  who  says  that  he  gave  a  fictitious  con- 
sent (*)  ;  and  even  if  it  is  certain  that  his  consent  was  feigned,  he 
may  be  compelled  to  give  a  valid  consent,  since  that  is  often  the 
only  way  of  repairing  the  wrong  done  to  the  other  party. 

3.  Free :  this  freedom   supposes    deliberation  and  a  judgment        free, 
sufficiently   ripe,   together  with  at  least  a  vague  idea  as  to  the 
object  of  the  consent.  Substantial  error  and  absence  of  delibera- 
tion destroy  the  validity  of  the  contract  ;  but  not,  more  probably, 

if  we  regard  only  the  natural  law  ('),  the  fear,  even  though  grave. 


mutual  consent  of  the  parties  as  only  the  initial  element  of  marriage,  insufficient 
by  itself,  and  requiring  to  be  completed  by  a  real  and  effective  taking  posses- 
sion :  this  is  done  by  the  interposition  of  the  officiating  clergyman,  who,  in  the 
course  of  the  religions  ceremony,  gives  the  bride  and  the  bridegroom  to  one 
another;  but  also,  exceptionally, by  the  conjugal  act  itself. 

I.  We  must  be  careful  not  to  fall  into  the  error  of  exaggerating  this  personal 
consent,  as  Thaner  does  (o.  c,  p.  36  ss.).  This  author  is  not  content  with  a  legal 
consent  analogous  to  that  required  in  the  case  of  other  contracts,  but  requires  a 
consent  accompanied  by  personal  knowledge  and  mutual  love  ;  so  that,  on  the 
one  hand,  he  refuses  to  admit  as  valid  a  marriage  by  proxy  between  parties 
previously  unacquainted  with  one  another ;  and,on  the  other  hand,  declares  that 
it  is  opposed  to  the  nature  of  marriage  to  break  a  contract  that  has  been  made 
between  two  persons,  who  seeing  one  another,  love  one  another,  and  bind  them- 
selves to  one  another,  notwithstanding  that  there  is  a  question  of  error,  and  of 
error  affecting  the  identity  of  the  person. 

3.  Nullity  of  marriage  owing  to  feigned  consent  was  declared  in  the  Causa 
Parisien.,  7  March.  1885  (A.  S.  S.,  XXIII,  p.  14  ss.),  and  also  in  the  Causa  Mas- 
silien.,  l  June  igii  (A.  A.  S.,  Ill,  p.  525  ss.).  In  both  cases  it  appeared  that  the 
man  went  through  the  form  of  marriage  without  any  matrimonial  intent,  but 
solely  for  the  purpose  of  obtaining  possession  of  the  bride's  dowry. 

3.  We  shall  state  later,  under  no  a66,  how  far  consent  extorted  by  fear  is  valid 
in  positive  law. 


lOO  THE  FORMALITIES   OF  THE   CONSENT 

that  determined  the  consent  :   moreover,  even  if  this  fear  was 
inspired  for  the  express  purpose  of  extorting   consent,  it   seems 
that  the  freedom  of  consent  was  sufficiently  safeguarded. 
external,         4.  Outwardly  manifested,  since  the  consent  must  be  reciprocal, 

and  accordingly  known  to  both  parties  (*). 
(^solute,  5.  Absolute  or  equivalently  so,  that  is  to  say,  given  without  a  sus- 
pensive condition,  or  after  its  fufilment  where  such  a  condition 
has  been  added.  We  shall  speak  more  at  length  of  conditional  con- 
sent in  article  3. 
simultaneous,  6.  Simultaneous,  seeing  that  marriage  has  for  its  constituent  ele- 
ment mutual  consent.  Nevertheless,  considering  the  nature  of  the 
marriage  contract,  physical  simultaneity  is  not  required,  and 
moral  simultaneity,  such  as  exists  when  one  of  the  parties  gives 
consent  during  the  virtual  continuance  of  the  consent  given 
by  the  other  party,  is  sufficient. If  one  of  the  parties  retracts  before 
the  other  party  consents,  there  is  no  marriage  ;  and  this  retracta- 
tion is  presumed  in  ih&  forum  externum  as  often  as  the  consent  of 
the  other  party  is  unduly  delayed. 
and  legiti-  7.  Legitimate.  Consent,  to  be  valid  and  capable  of  producing  mar- 
*"*  '  riage,  must  be  given  by  persons  capable  of  contracting,  and  under 
the  conditions  and  with  the  formalities  prescribed  for  its  validity.  As 
we  shall  see  further  on,  when  speaking  of  impediments,people  may 
be  incapacitated  not  only  by  the  natural  law,  but  also  by  the 
positive  law,  through  the  act  of  the  authority  that  regulates  mar- 
riage; this  authority  has  also  the  right  to  lay  down  the  conditions 
required  for  the  validity  of  the  contract,  and  the  formalities  to  be 
observed  in  giving  consent.  "We  shall  speak  of  these  different  for- 
malities in  article  2. 

Article  2.  Formalities  of  matrimonial  consent. 

Preliminary  observations. 
Inthenatural      1.  In  the  natural  law,  mutual  consent  reciprocally  manifested 
ciaTMnmli-  ^J  words,  or  signs,  or  in  any  other  way  whatsoever,  is  sufficient  ; 
ity  is  requi-   and  the  presence  of  a  third  party  is  by   no  means  necessar}\  It 


I,  The  sacramental  quality,  which,  as  wc  shall  see  further  on,  is  inherent  in 
the  marriage  contract  between  Christians,  requires  the  same  condition,  since 
consent  constitutes  the  outward  sign  of  the  sacrament  of  matrimony. 


THE  FORMALITIES   OF  THE   CONSENT 


lOI 


would  accordingly  be  sufficient  if  the  bride  signified  her  acquies- 
cence by  a  simple  inclination  of  the  head,  or  if  she  of  her  own  free 
will  gave  her  hand  to  the  man  for  him  to  place  the  wedding  ring 
upon  her  finger,  or,  again,  if  she  pressed  the  hand  of  the  bride- 
groom while  he  expressed  his  consent  (').  In  like  manner  sexual 
intercourse,  with  conjugal  intent,  would  also  suffice  (*). 

It  is  certain  also  that  marriage  by  proxy  is  valid  in  the  natural 
law,  provided  the  proxy  has  received  a  special  commission, 
and  the  principal  has  not  retracted  his  consent  before  the  mar- 
riage takes  place.  In  like  manner,marriage  by  letter  is  valid,  though 
there  may  be  a  doubt  as  to  the  precise  moment  at  which  the  con- 
tract comes  into  force  ('). 

2.  In  the  positive  law,  in  the  marriages  of  baptized,  the  formali- 
ties prescribed  by  the  Church  must  be  observed  ;  and  in  the  mar- 
riages of  unbaptized,  those  required  by  the  State  (*).  The  pro- 
visions of  the  civil  law  are  given  at  the  end  of  this  article.  As 
regards  the  provisions  of  the  canon  law  : 

Formerly,  before  the  Council  of  Trent,  no  special  formality  was  pre- 
scribed for  the  validity  of  marriage,but  it  was  nevertheless  forbid- 
den, under  pain  of  grievous  sin,  to  marry  clandestinely,  i.  e., 
without  the  presence  of  kinsmen,  or  of  a  notary,  or  of  a 
priest  (').  The  Council  of  Trent.,  Sess.  XXIV,  ch.  i,  De  Ref. 
Matrimonii,  introduced  the  diriment  impediment  of  clandestinity, 
incapacitating  such    as  should    contract    marriage  «  otherwise 


63. 

Formalities 

required  by 

the  canon 

law : 


before  the 

Council  of 

Trent  ; 


after  the 

Council  of 

Trent  ; 


I.  It  may  be  asked  if  the  silence  of  a  son  in  the  presence  of  his  parents,  who 
make  the  contract  for  him, sufficiently  manifests  his  consent ;  and  it  is  debated,  if 
the  presumption  that  Boniface  VIII,  cap.  unic,  in  VI°,  IV,  2,  draws  from  this 
silence  in  favour  of  betrothment.is  applicable  to  marriage. In  the  face  of  this  con- 
troversy, one  cannot  make  use  of  the  affirmative  opinion,  except  in  cases  where 
it  is  clearly  shown  that  silence  did  include  the  required  consent.  Cf.  Gasparri, 
o.  c,  no  831 ;  Wernz,  o.  c,  IV,  n"  46. 

3.  Thus  in  former  times  the  conjugal  act,  following  on  betrothment,  carried 
with  it  a  conclusive  presumption  (juris  et  de  jure)  of  matrimonial  consent.  See 
above,  n"  14. 

3.  Cf.  Gasparri,  o.  c,  no  833,  and  n^s  773  and  775.  See  below,  n^  70. 

4.  See  below,  no  324. 

5.  Cf.  c.  1-5,  C.  XXX,  qu.  5  ;  c.  3,  X,  IV,  3  ;  Benedict  XIV,  De  Syn.  dioec.,  1. 
Vin,  ch.  XIII,  nos  3  ss. ;  Council  of  Trent,  Sess.  XXIV,  ch.  i,  De  Ref  Matr. ;  the 
Votum  Defensoris  matrimonii  ad  Decretum  Ne  Temere,  in  the  Acta  S.  Sedis, 
1907,  p.  542  s. ;  cf.  also  Schulte,  o.  c,  p.  36-45. 


102-  THE  FORMALITIES  OF  THE  CONSENT 

than  in  the  presence  of  the  parish  priest  ('),  or  of  a  priest  appro- 
ved by  him  or  by  the  Ordinary,  and  of  two  or  three  witnesses  ». 
Many  countries,  however,  we^-e  exempt  from  the  apphcation  of 
this  decree  ('). 
since  the  Quite  recently,  the  celebrated  decree  Ne  Temere  ('),  of  which  we 
NeTemere  have  spoken  above,  and  which  came  into  force  from  Easter 
Sunday  (19  April)  of  the  year  1908  (*),  inaugurated  a  new  disci- 
pline, which  from  thai  date  takes  the  place  of  the  former  discipline  C^). 
This  new  discipline  modifies  not  only  the  formalities  required  for 
consent,  but  also  the  very  economy  of  the  Tridentine  decree  ;  for 
while  this  latter  took  efifect  through  the  impediment  of  clandesti- 
nity  by  incapacitating  the  contracting  parties  (*),  the  impediment 
under  the  present  discipline  directly  affects  the  form  of  the  contract. 
For  this  reason  we  prefer  to  speak  of  it  here  rather  than  under  the 
head  of  impediments. 

In  a  first  section  we  shall  describe  the  formalities  required  in 
order  that  marriage  may  be  both  lawful  and  valid  (')  ;  in  a  second 
section  we  shall  show  what  marriages  fall  under  the  new  law. 

I.  Whatever  may  have  been  the  intention  of  the  Tridentine  Fathers,  it  is  cer- 
tain that  the  chapter  Tametsi  has  always  been  understood  in  this  sense,  that  for 
the  validity  of  marriage,  the  presence,  not  of  any  parish  priest  whatever,  nor  of 
the  parish  priest  of  the  place  where  the  marriage  took  place,  but  of  the  pafticular 
parish  priest  of  the  contracting  parties,  to  the  exclusion  of  any  other,  was  neces- 
sary. Cf.  the  Votum  Consultoris  ad  dccretum  Ne  Temere,  in  the  Acta  S.  Sedis, 
J907,  p.  574  s.  ;  the  Votum  Defensoris  matrimonii,  ibid.,  p.  545,  and  p.  554  ss. 

3.  Concerning  the  fortunes  of  the  chapter  Tawcfo*  at  the  Council  of  Trent,  cf. 
EsMEiN,  o.  c,  II,  p.  155-308. 

3.  The  decree  Ne  Temere  was,  indeed,  issued  by  the  S.  C.  C,  but  it  is  rather  a 
Pontifical  decree  than  a  decree  of  the  S,  Congregation,  as  it  was  approved  by 
the  Pope  in  specifica  forma.  See  the  Author's  Commentarius  in  Dccretum,  p.  9. 
The  text  of  the  decree  is  given  at  the  end  of  this  treatise  ;  the  previous  Acta  may 
be  seen  in  the  Acta  S.  S.,  t.  XL,  p.  591  ss. ;  the  principal  commentaries  appear  in 
the  index. 

4.  An  exception  was  made  in  favour  of  the  Chinese  empire,  for  which  a  proro- 
gation was  granted  till  Easter  1909(11  Apr.)  by  letters  of  the  S.  C.  de  P.  F., 
dated  39  Feb.  1908. 

5.  The  new  law  has  no  retrospective  effect,  and  consequently  all  marriages  ante- 
rior to  Easter  1908,  are  subject  to  the  Tridentine  decrees. 

6.  Cf.  EsMEiN,  o.  c,  I,  p.  78  ss.  See  also  below,  where  we  speak  of  the  power 
of  setting  up  impediments. 

7.  We  are  here  abstracting  from  the  sacramental  ceremonies,  of  which  we 
shall  speak  later. 


THE  FORMALITIES  OF  THE  CONSENT  I03 

Paragraph  I.  FORMALITIES  TO  BE  OBSERVED. 

First  Point.  Formalities  Required  For  Validity. 

I.  General  rule. 

64. 
Proposition.  Marriage,  in  order  to  be  valid,  must  be  celebrated  Formalities 

before  two  witnesses,  and  either  before  the  parish  priest  or  the  Ordinary  ^'yalidityY 

of  the  place  where  it  takes  place,  or  before  a  priest  delegated  by  one  or 

the  other.   The  parish  priest,  or  the  Ordinary,  or  the  delegate,  being 

invited  and  requested,  and  not  constrained  by  violence  or  grave  fear, 

must  ask  and  receive  the  consent  of  the  contracting  parties. 

Explanation. 

A.  The  assistance  of  the  parish  priest  or  of  the  Ordinary. 

I .  By  Ordinary  and  parish  priest  must  be  understood  those  who  As  a  general 
are  specified  in  the  decree  of  the  C.  S.  O.  of  20  Febr.  1888  (*),  and    p^isei^is 
in  chapter  II  of  the  decree  Ne  Temere.  Under  the  appellation  of     required 
Ordinary  come  Bishops,  Administrators  or  Vicars  Apostolic,  Pre- 
lates or  Prefects  having  jurisdiction  together  with  a  separate  ter- 
ritory, their  Officials  or  Vicars  General  for  spiritual  affairs,  and, 
Sede  vacante,  the  Vicar  Capitular  or  legitimate  administrator. 

Under  the  name  of />amA/>n^s^  are  here  included  (*)   c  not  only    of  tlie  Or- 
he  who  is  lawfully  at  the  head  of  a  parish  canonically  erected  (and    J5^*^'  '^-  u^ 
consequently  the  parish  priest  properly   so  called,  even  if  he  is       priest 
only  a  «  succursalist  >,  as  well  as  the  officiating  priest (deservitor) or 
administrator  of  a  vacant  parish),  but  also,  in  those  parts  in  which 
parishes  have  not  been  canonically  erected,  the  priest  who  has 
duly  received  the  care  of  souls  in  a  definite  district,  and  who  is 
equivalent  to  a  parish  priest  ;  and  also,  in   missions   where  the 
districts  have  not  as  yet  been  perfectly  divided,  every  priest  who 
has  been  generally  deputed  by  the  Superior  of  the  mission  for  the 
care  of  souls  in  any  station  »  (^). 


1.  Collectanea,  n.  1471  ;  see  below,  n"  353. 

2.  This  cannot  be  indiscriminately  applied  where  the  matter  is  different. 

3.  With  regard  to  these  last,  Besson,  N.  R.  Th.,  1907,  p.  616  s.,  makes  the 
following  observations  :  a/  <  Dans  une  mission  ou  plusieurs  pretres  auraient  re9U 
chacun  cette  delegation  universelle  pour  toute  la  mission,  chacun  serait  ainsi  curd 
au  sens  du  decret  dans  toute  I'etendue  de  la  mission;  si,  au  contraire.la  mission  a 


I04 


THE  FORMALITIES  OF  THE  CONSENT 


of  the  place 

witere  the 

marriage  is 

ulebrated  ; 


A  priest  who  has  the  universal  and  full  charge  of  a  parish,  the 
parish  priest  of  which  is  insane  or  obviously  incapable  of  dischar- 
ging his  duties  for  a  long  time  to  come,  may  also  be  regarded  as 
equivalent  to  a  parish  priest.  But  the  coadjutor  of  a  parish  priest 
who  administers  his  own  parish,  a  vice-pastor,  or  assistant,  as  he 
is  called  in  North  America,  is  not  considered  as  such.  We  are  also 
of  opinion  that  the  Bishop  has  no  power  to  make  them  quasi- 
parish  priests  for  the  purpose  of  assisting  at  marriages,  unless  he 
grants  them  the  care  of  souls,  full  and  independent  of  the  parish 
priest  (for  this  would  be  to  change  the  vicarious  office  and 
appoint  two  parish  priests)  ;  they  can  only  be  delegated  by  the 
Bishop  or  by  the  parish  priest  (though  certainly  to  the  universa- 
lity of  cases),  and  so  cannot  subdelegate,  except  for  a  particular 
case.  For  this,  see  below,  n°  65  adfinem  (*). 

2.  The  Ordinary  and  the  parish  priest  of  the  place  {diocese,  or 
parish  respectively),  within  the  limits  of  which  the  marriage  takes 
place,  are  the  only  ones  competent  to  assist  at   the   marriage. 

The  parish  priest  or  Ordinar}^  whose  presence  is  required  for 
the  validity  of  the  marriage,  is  not  now,  as  heretofore  (*),  the 
parish  priest  or  Ordinary,  in  whose  parish  or  diocese  (')  one  or 


6t6  partagee  en  divers  districts  ou  stations  plus  ou  moins  ^tendus,  et  des  pretres 
places  respectivement  k  la  tete  de  chaque  district  ou  de  chaque  station,  chacun 
de  ces  pretres  sera  cur^  dans  le  district  ou  la  station  dans  lesquels  il  a  charge 
d'dmes. 

b/  il  faut  toutefois  se  garder  de  confondre  la  charge  d'dmes,  qui  donne  qualite 
pour  signer  aux  fian9ailles  et  assister  au  mariage,  avec  tout  autre  mandat  eccl6- 
siastique  ou  religieux.  II  arrive  souvent,  dans  les  missions,  que  plusieurs  postes, 
ayant  chacun  un  missionnaire  k  sa  t6te,  sont  rfeunis  en  district  sous  I'autorit^ 
d'un  superieur.  II  ne  s'ensuit  pas  que  ce  sup6rieur  puisse  etre  temoin  qualifi^  des 
fian9ailles  et  du  mariage  dans  tout  le  territoire  du  district.  Parfois  en  effet  il 
n'aura  pas  re9u  la  charge  spirituelle  immediate  des  fideles,  mais  sa  congregation 
lui  aura  seulement  donn6  autorit6  pour  diriger  la  vie  religieuse  de  ses  confreres*. 

1.  Cf.  in  this  sense  Archiv.  f.  k.  KircJienr.,  1910,  p.  593  ;  Creagh,  o.  c, 
p.  53  ss. ;  De  Becker,  Ne  temere,  p.  13  and  31.  Of  a  different  opinion  is  McNicHO- 
i.KS,'mihc:Eccles.  Review,  t.  XXXVIII,  p.  145  s.,  and  t.  XXXIX,  p.  36  s.,  cf. 
p.  438,  where  he  says  that  some  Bishops  have  in  the  above  mentioned  manner 
appointed  assistant  priests  as  quasi-parish  priests  with  a  view  to  the  validity  of 
marriage  ;  likewise  Wouters,  o.  c,  p.  34. 

2.  See  what  has  been  said  above  on  the  interpretation  of  the  chapter  Tametsi. 

3.  According  to  the  decree  of  the  C.  S.  O.,  9  Nov.  1898,  in  order  that  the  Ordi- 
nary might  be  the  proper  Ordinary  with  regard  to  a  marriage,  it  was  necessary 


THE  FORMALITIES   OF  THE   CONSENT  I05 

other  of  the  contracting  parties  has  a  domicile  or  quasi-domicile, 
but  the  parish  priest  or  Ordinary  of  the  place  within  ihs  limits  of 
which  the  marriage  takes  place  ;  so  that  it  is  before  him  alone 
(or  before  the  priest  delegated  by  him,  as  we  shall  say  later)  that 
the  marriage  can  be  validly  celebrated,  whether  the  contracting 
parties  are  his  subjects  or  not.  This  is  the  principal  change  made  in 
the  law  of  clandestinity  ;  and  this  modification  has  been  introduced 
with  the  object  of  avoiding  the  complications  and  difficulties 
that  were  frequently  experienced  in  connection  with  the  decree 
Tametsi  ('). 

Observe  that  it  follows  from  this,  that,  contrary  to  what 
obtained  under  the  Tridentine  discipline,  a  parish  priest  or  Ordin- 
ary cannot  henceforth,  without  delegation,  assist  at  the  marriage 
of  his  own  subjects,  outside  of  the  limits  of  his  own  parish  or  diocese  ; 
while  he  can,  on  the  other  hand,  in  opposition  to  the  former  law, 
validly  assist  at  the  marriage  of  those  who  are  not  his  subjects, 
provided  it  is  celebrated  within  the  limits  of  his  territory  (*),  that  is 
to  say,  provided  he  be  the  parish  priest  or  the  Ordinary  of  the  place 
where  the  marriage  takes  place  ('). 


to  consider  the  fact  of  domicile  not  in  the  diocese  in  general,  but  in  a  determi- 
nate parish  of  the  diocese.  Cf.  below,  n"  73. 

I.  «Saepe  namque  »,  as  the  introduction  to  the  Ne  Tcmerc  observes, «  gravis  ex- 
titit  dubitatio  in  decernenda  persona  parochi.quo  praesente  matrimonium  sit  con- 
trahendum.  Statuit  quidem  canonica  disciplina  proprium  parochum  eum  intelligi 
debere,cujus  in  paroecia  domicilium  sit  aut  quasi-domicilium  alterutrius  contra- 
hentis.  Verum  quia  nonnunquam  difficile  est  judicare  certo  ne  constet  de  quasi- 
domicilio,  haud  pauca  matrimonia  fuerunt  objecta  periculo  ne  nulla  essent ; 
multa  quoque  sive  inscitia  hominum  sive  fraude,  illegitima  prorsus  atque  irrita 
deprehensa  sunt.  Haec  dudum  deplorata,  eo  crebrius  accidere  nostra  aetate  vide- 
mus,  quo  facilius  ac  celcrius  commeatus  cum  gentibus  etiam  disjunctissimis 
perficiuntur  ». 

3.  The  churches  of  regulars,  even  those  exempted,  are  no  exception :  they  may  and 
ought  to  be  considered  «  as  the  territory  of  the  parish  priest  or  Ordinary  of  the 
district  in  which  they  are  situated  for  all  that  concerns  assistance  at  marriage  ». 
S.  C.  de  Sacr.  13  March  1910,  c.  8. 

3.  Many  doubts  were  proposed  to  the  C.  S.  O.  and  solved  i  Feb.  1908,  with 
regard  to  certain  special  classes  of  parish  priests.  These  doubts  concern  the  com- 
petence of  the  parish  priest  of  the  place  where  the  marriage  is  celebrated,  but 
they  are  hardly  applicable  to  our  country.  They  are  the  following  : 

a)  As  concerns  strictly  personal  parish  priests,  who,  like  military  chaplains, 
have  no  territory,  not  even  in  conjunction  with  another  parish  priest,  but  exer- 


I06  THE  FORMALITIES  OF  THE   CONSENT 

he  must  have     3.  In  order  that  his  assistance  may  be  valid,it  is  necessary  a/  that 
ion  of  his  '  ^^  should  have  taken  possession  of  his  benefice,  or  have  begun  to  exercise 

benefice,  and  ^^5  o#c^,and  b/  that  he  should  have  incurred  no  suspension  fab  officio), 
not  be  under         JJ      >  1  r         7  7  •    j 

any  public  and  no  excommunication  by  name  m  vtriue  of  a  public  decree, 
censure ;  j^.  j^  ^^^  sufficient,then,  that  the  Bishop  should  have  been  elect- 
ed, or  that  the  parish  priest  should  have  been  nominated  by  the 
Bishop  ;  it  is  necessary  that  the  former  should  have  taken  posses- 
sion of  his  see,  and  that  the  latter  should  have  already  assumed  the 
administration  of  his  parish  or  quasi-parish  and  the  charge  of  his 
ofBce.  In  the  diocese  of  Bruges,  this  ordinarily  takes  place  when 


cise  jurisdiction  directly  on  persons  and  families,  and  follow  them  in  their 
changes  of  residence,  nothing  has  been  changed  (ad  ym),  and  consequently  they 
can  validly  assist  anywJiere  at  the  marriage  of  their  subjects.  Cf.  Coll.  Brug., 
t.  XIII,  p.  303  s.  ;  Archiv.f.  k.  Kirchenr.,  1908,  p.  730  ss.  and  1910,  p.  141  ss.  ; 
Knecht.o.  c,  p.  67  ss. ;  Di  Pauli,  o,  c,  p,  85  ss.  But  such  chaplains  can  no  long- 
er assist  at  the  marriage  of  other  persons  in  their  church  or  military  chapel,  as 
they  could  before  the  decree  of  Pius  X  ;  they  would  now  require  to  be  delegated 
by  the  parish  priest  of  the  parish  in  the  territory  of  which  the  church  in  question 
stands.  Cf.  Theologische  Revue,  1910,  p.  231. 

b)  Parish  priests  who  have  no  territory  exclusively  their  own,  but  have  one 
in  common  with  one  or  more  other  parish  priests  (as  is  the  case,  e.  g.,  where 
two  parish  priests  have  charge  of  souls  in  the  same  parish,  but,  for  inhabitants  ot 
two  different  nationalities  respectively),  validly  assist  at  all  marriages  within  the 
limits  of  the  territory  that  they  hold  collectively  (ad  8^).  Coll.  Brug.,  t.  XIII, 
p.  303  s. ;  ScHULZE,  KirrM-Kath.  EJterecht,  1.  c,  p.  814  s. 

c)  Parish  priests  who,  in  addition  to  their  own  territory,  have  also  in  other 
parishes  certain  persons  or  families  who  belong  to  their  flock,  can  validly  assist 
there  at  the  marriage  of  their  subjects.  This  is  the  reply  given  ad  g*",  after  con- 
sultation with  His  Holiness,  Collat.  Brug.,  t.  XIII,  p.  303  s.  The  question  whether 
the  parishioners  of  these  personal  parish  priests  could  also  be  validly  and  law- 
fully married  before  the  parish  priest  of  the  place  where  they  reside,  was  left 
undecided  by  the  C.  S.  O.  in  its  reply  of  37  July  1908,  ad  8'".  Cf.  Coll.  Brug., 
1.  c,  p.  597  and  645  ;  N.  R.  Th.,  1908,  p.  739  ss.  But  two  years  later,  3  June  1910, 
in  a  particular  case  in  which  these  special  circumstances  arose,  the  S.  C.  de 
Sacr.,  after  consultation  with  the  Holy  Father,  gave  a  negative  reply, which  may 
be  found  in  the  Acta  Ap.  Sedis,  1910,  p.  447  s. ;  and  in  the  Coll.  Brug.,  t.  XV, 
p.  433SS. 

d)  Rectors  of  pious  establishments,  e.  g.,  hospitals,  exempt  from  parochial 
jurisdiction,  can,  provided  they  have  received  the  full  powers  of  a  parish  priest, 
assist  at  the  marriage  of  persons  under  their  charge,  in  the  place  in  which 
they  exercise  their  jurisdiction  (ad  lom).  CL  Coll.  Brug.,  t.  XIII,  p.  304,  and 
also  Rev.  eccl.  de  Metz,  1908,  p.  397  s. 


THE  FORMALITIES   OF  THE   CONSENT  I07 

the  parish  priest  visits  his  new  parish  for  the  first  time  (*). 

From  the  day  of  taking  possession,  the  Ordinary  or  the  parish 
priest  is  capable  of  assisting  validly  at  marriages,  and  he  remains 
so,  provided  he  be  not  excommunicated  publicly  and  by  name 
(that  is  to  say,  by  name  and  christian  name  (*),  or  at  least  in  such 
terms  as  designate  him  quite  evidently),  or  suspended  from  his 
office  (')  publicly  and  by  name,  whereby  he  would  be  prohibited 
from  all  exercise  of  jurisdiction  and  of  orders  (*). 

As  formerly,  so  at  the  present  time,  it  is  not  necessary  that  the 
parochus  should  be  a  priest,  since  the  decree  does  not  explicitly 
require  it,  and  the  nature  of  the  office  to  be  discharged  does  not 
demand  it,  seeing  that  assistance  at  marriage  involves  the  exercise 
neither  of  orders  nor  of  jurisdiction  (*).  Moreover,  there  seems  to 


1.  «Nomine  possessionis  hie  intelligi  ilium  actum,  qui,sive  institutio  corporalis, 
sive  inthronizatio,  sive  installatio,  sive  aliter  nuncupetur,tamen  semper  id  efficit 
ut  institutus  in  beneficium  exinde  adipiscatur  liberum  exercitium  potestatis,  suo 
officio  adnexae  ».  Thus  the  C.  S.  O.,  3  March  1908.  See  Coll.  Brug.,  t.  XIV,  p. 
36a  s.  ;  Coll.  Namurc,  t.  IX,  p.  73,  where  we  find  that  parish  priests  take  posses- 
sion of  their  benefices  in  the  diocese  of  Namur  otherwise  than  in  the  diocese  of 
Bruges.  Cf.  also  N.  R.  Th..,  1909,  p.  488  ss. 

2.  An  excommunication  of  this  kind  was  pronounced  against  Loisy  by  the 
C.  S.  O.,  7  March  1908. 

3.  We  say  :  suspended  from  his  office  :  the  disqualification  of  a  parish  priest, 
therefore,  does  not  require  that  he  should  first  be  suspended  from  his  benefice,  and 
deprived  of  the  right  of  receiving  the  emoluments  of  his  office  ;  moreover,  the 
suspension  from  his  benefice  alone  would  not  suffice. 

4.  Under  the  Tridentine  discipline  it  was  generally  admitted  that  a  parish  priest 
excommunicated,  even  by  the  greater  excommunication,  and  suspended,  validly 
assisted  at  a  marriage  ;  but  not  one  guilty  of  public  heresy,  even,  according  to 
most  authorities,  before  the  declaratory  sentence.  On  this  subject  see  Wernz, 
o.  c,  IV,  no  617,  note  184  ;  Rosset,  o.  c,  n^  3308.  The  new  discipline  is  in  part 
more  severe, since  it  does  not  admit  the  parish  priest  who  is  notoriously  suspend- 
ed, and  who  is  excommunicated  by  name  and  publicly  ;  in  part  also  it  is  less 
severe,  since  it  seems  to  admit  parish  priests  who  are  guilty  of  heresy,  unless, 
on  this  head,  they  have  been  notoriously  and  by  name  excommunicated,  or 
publicly  suspended  by  a  judicial  sentence.  See  in  the  N.  R.  Th.,  1910,  p.  465,  the 
case  of  a  parish  priest  in  France,  who  was  at  the  head  of  one  of  the  associations 
cultuelles  codemned  by  the  Holy  See. 

5.  See  below,  no  no  ;  Haring,  Ne  Temere,  p.  13,  compare  with  Wernz,  o.  c, 
IV, no  176,  and  Feye,  De  Imped. ;  this  last  answers  the  difficulty  presented  by  the 
text  of  the  Cuncil  of  Trent,  which  says  «  praesente  parocho,  vcl  alio  sacerdote  », 
a  form  repeated  in  the  recent  Decree. 


TOS  THE  FORMALITIES   OF   THE  CONSENT 

be  nothing  requiring  modification  in  the  common  opinion,  that  a 

putative  parish  priest  assists  validly  at  marriages,  and  that  the 

Church  supplies  what  is  wanting,  provided  there  be  the  titulus 

coloratus  and  the  error  communis  (*). 

he  must  be        4.  As  regards  the  manner  of  assisting  :  The  parish  priest  and  the 

assist  at  the   Ordinary  assist  validly  only  <  when,  being  invited  and  asked,  and 

marriage  and  constrained  neither  by  force  nor  by  grave  fear,  they  ask  and  receive  the 
ask  the    con-  -^  Z  .  /       »        ^ 

sent;      consent  of  the  contracting  parties  ■». 

a/  Heretofore,  under  the  Tridentine  discipline,  according  to  the 
general  teaching,  the  purely />assm  assistance  of  the  parish  priest 
as  qualified  witness,  in  such  manner  as  to  understand  the  consent 
given  in  his  presence,  and  to  be  able  to  testify  to  it  in  case  of 
need,  was  sufficient.  It  was  even  held  that  the  marriage  was  valid 
when  the  parish  priest  had  understood  nothing,but  had  intention- 
ally kept  himself  from  doing  so. 

Henceforth,  a  positive  act  is  required  on  the  part  of  the  parish 
priest  ;  he  must  ask  and  receive  the  consent  in  due  form  (*). 

b/  Heretofore,  the  parish  priest  had  to  fulfil  his  office  of  witness, 
of  authorized  and  qualified  witness  ('),  but  the  contracting  parties 
were  under  no  obligation  to  ask  him  to  be  present  for  this  purpose; 
it  was  sufficient  for  them  to  show,  even  implicitly,  by  their 
manner  of  acting,  that  they  wished  to  contract  marriage,  and  that 
they  took  him  as  witness,  even  if  he  happened  to  be  there  by 
chance,  or  had  been  sent  for,  under  some  other  pretext. 

Henceforth,  the  parish  priest  must  be  asked  and  invited  to  assist  at 


1.  There  is  a  titulus  coloratus,  when  the  parish  priest  has  been  appointed  by  a 
compeient  authority,  but  invalidly,  owing  to  some  hidden  defect ;  there  is  an 
error  communis,  when  the  parish  priest  is  recognised  as  such  by  his  flock,  but 
is  not  really  such  on  account  of  some  hidden  defect.  There  is  said  to  be  a  prob- 
able error  when  the  defect  is  not  easily  discovered.  The  Author  has  treated  this 
subject  at  length  in  the  Coll.  Brug.,  t.  IV,  p.  643  ss.,  and  there  gives  the  legal 
texts  on  which  he  relies. 

2.  The  parish  priest  will  have  to  take  into  account  this  innovation  when 
assisting  at  mixed  marriages,  of  which  we  shall  speak  under  n°  257.  For  marri- 
ages by  letter,  see  below,  no  70. 

3.  It  was  necessary  then,  and  is  still  necessary,  that  the  parish  priest  should  be 
present  as  the  qualified  witness ;  hence  the  invalidity  of  marriages  contracted 
before  a  civil  officer  and  two  witnesses,  of  whom  the  parish  priest  is  one,  but 
only  as  an  ordinary  witness.  Cf.  Rev,  du  clergefr.,  t.  XIV,  p.  209  s. 


THE   FORMALITIES   OF  THE   CONSENT  IO9 

the  marriage  (')  ;  and  thereby  marriages,  known  as  <  par  surprise, 
ou  a  la  Gaulmine  »,  are  rendered  impossible  ;  thus  an  end  is  put  to 
the  doubts  (*),  and  other  inconveniences  (^),  that  manoeuvres  of 
this  kind  occasionally  gave  rise  to  in  the  past.  It  is  sufficient, 
however,  that  there  should  be  an  implicit  invitation  ;  there  is  no 
necessity  for  it  to  be  explicit  and  formal  (*),  and  it  is  enough  that 
it  should  emanate  from  one  of  the  parties. 

c/  Heretofore,  the  validity  of  the  marriage  was  not  endangered  he  must  do  so 
by  the  fact  that  the  parish  priest  had  been  constrained  by  fear  or  "'^c^'by  fear' 
violence  to  assist   at  it.  Henceforth,  the  hypothesis  of  assistance 
extorted  by  fear,  we  are  speaking,  of  course,  of  grave  fear,  falls  to 
the  ground  ("). 

B.  The  assistance  of  the  delegated  priest. 

The  Ordinary  or  the  parish  priest,  who  is  competent  to  assist    The  priest 

competent  to 

assist  can 
I.    Coll.  Brug.f  t.  XII,  p.  470.  This  follows  from  the  condition  indicated  under  delegate  an- 

letter  a/.  We  must,  however,  make  an  exception  for  the  extraordinary"  case  in    otiter  in  his 
which,  as  we  shall  see  later,  a  marriage,  celebrated  before  two  witnesses  only,        "        ' 
would  be  valid  ;   the  assistance  of  these  witnesses  is  not  affected  by  the  modifica- 
tion of  the  former  law. 

The  change  made  in  the  assistance  of  parish  priests  has  been  mtroduced  «  out 
of  respect  for  them  and  for  the  dignity  of  the  sacrament ;  for  parish  priests  were 
not  sufficienlty  protected,  under  the  former  law,  against  trickery  and  violence, 
and  could  be  forced  to  give  their  assistance,  even  in  self-defence  ».  Consultor 
of  the  S.  C.  C.  in  the  ActaS.  Sedis,  t.  41,  p,  378.  Cf.  BocKENHOFF,iV«  temere,  1.  c, 

P-  559- 

3.  See  the  decision  of  the  tribunal  of  the  Rota,2^lA.a.y  1909  (in  the  Canon, 
cont.,  igog,  p.  587  ss.),  concerning  a  marriage  contracted  in  1897. 

3.  It  is  thus  that  certain  betrothed  acted,  when  they  desired  to  contract  a 
mixed  marriage,  in  view  of  which  they  had  been  unable  to  obtain  dispensation. 

4.  Decree  of  the  S.  C.  C.  of  a8  March  1908,  ad  4«,  Many  writers  justly  remark 
that  the  invitation  is  sufficient, if  the  parish  priest  himself  approaches  the  engaged 
parties,  and  they  consent  to  be  married  before  him.  See  Gennari,  o.  c,  p.  26  ; 
Vermeersch,  o.  c,  p.  45 ;  Van  den  Acker,  o.  c,  p.  33  ;  Wouters,  o.  c,  p.  43. 

5.  Wouters,  o.  c,  p.  44,  and  Besson,  N.  R.  th.,  XL,  p.  34,  declare,  in  opposi- 
tion toDE  Becker,  Legislatio  nova,  p.  36  s.,  that  the  case  of  grave  fear,  even 
when  merited  in  the  main,  and  justifiable  in  form,  is  an  impediment  to  the 
validity  of  the  assistance  of  the  parish  priest.  See  also  Van  den  Acker,  o.  c, 
p.  34,  who  observes  that/rawii  alone,  without  violence  or  threats,  does  not  aff"ect 
the  validity ;  such  would  be,  e.  g.,  the  case  of  a  parish  priest  who,  being  deceiv- 
ed by  the  engaged  parties  as  to  their  domicile  or  place  of  residence,  assisted 
at  their  marriage. 


no  THE  FORMALITIES  OF  THE  CONSENT 

at  the  marriage  ('),  is  empowered  to  delegate  another  priest  in  his 
place.  In  order  that  the  assistance  of  this  delegate  may  be  valid,  it 
is  necessary  to  observe  the  conditions  prescribed  for  the  validity 
of  the  delegation  and  of  the  assistance, 
thts  delega-  1.  The  conditions  required  for  the  validity  of  the  delegation, 
regard  being  had  to  the  provisions  of  the  former  and  of  the  new 
legislation  ('),  are  the  following  : 

a)  must  be  a/The  delegation  must  not  go  beyond  the  limits  of  the  competence 
^^ritory  of  of  the  principal  himself;  consequently  he  cannot  delegate  anyone 
the  principal,  to  act  for  him  in  this  matter  beyond  the  limits  of  his  own  territory. 

b/  It  must  be  made  to  a  determinate  priest, 
h)  made  to  a  It  would  be  invalid  if  it  were  given  in  an  indeterminate  manner, 
briest'^  ^  ^^  designating,  for  example,  in  general  and  indefinitely  one  of  the 
curates  of  a  parish,  or  any  priest  whom  the  engaged  parties  might 
choose  (').  It  is  necessary  that  the  delegate  should  be  specified  by 
name,  or  by  his  office,  or  in  some  other  way.  It  is  permissible, 
however,  to  give  the  delegation  either  directly  to  the  priest 
himself,  or  through  the  agency  of  the  engaged  parties,  by  permit- 
ting them  to  be  married  before  some  definitely  designated  priest. 
There  is  no  reason,  moreover,  why  a  parish  priest  should  not 
delegate  several  priests  at  the  same  time,  for  instance,  all  his 
curates,  so  that  any  one  of  them  might  validly  assist  at  marriages 
during  his  absence. 

Observe  also  that  the  contracting  parties  need  not  be  determin- 
ed in  the  delegation,  and  that  consequently  the  delegation  is 
valid  if  given  for  contingent  marriages  that  may  take  place  on 
such  a  day  or  in  such  a  week. 


1.  Thus  the  parish  priest  cannot  delegate  another  priest  in  his  place  before 
taking  possession  of  his  benefice  ;  nor  can  he  do  so,  in  all  probability,  so  long  as 
he  remains  publicly  and  by  name  excommunicated  or  suspended  :  some,  how- 
ever,deny  this  second  point.  Cf.  Van  den  Acker.o.  c,  p.  58  s. ;  Wouters,  o.  c, 
P-  58  ;  OjETTi,  Jus  Pianum,  n.  103. 

2.  The  change  made  here  by  Pius  X  is  in  the  two  loUowing  points :  only  a 
determinate  priest  can  be  delegated,  and  the  delegation  is  restricted  to  the  terri- 
tory of  the  principal.  The  S.  C.  C,  37  July  1908,  ad  4™,  declared  that  apart  from 
this,  no  change  had  been  made  in  the  matter  of  delegation. 

3.  This  kind  of  delegation  was  valid  under  the  former  discipline,  at  least  when 
the  parties  to  be  married  were  quite  determinate.  See  the  Author's  Commen- 
tarius,  p.  34. 


THE  FORMALITIES  OF  THE  CONSENT  111 

c/  The  delegation  must  be  really  given,  ior  a  simply  presumed  or  c)  positively 
interpretative  delegation  will  not  suffice  (')  ;  moreover,  it  must  ^Zuput, 
have  been  expressly  or  tacitly  accepted,  at  least  when  the  delega- 
tion is  given  to  a  priest  who  is  not  subject  to  the  authority  of  him 
who  gives  it  (*)  ;  note  also  that  the  delegation  does  not  hold  good 
in  the  case  of  error  affecting  the  person  of  the  delegate,  or  that  of 
the  contracting  parties  ('). 


I.  Tacit  delegation  is  considered  to  be  sufficient,  that  is  to  say,  such  as  can  be 
deduced  from  antecedent  and  really  conclusive  facts  ;  for  tacit  delegation  can 
sufficiently  express  the  positive  will  of  the  principal.  Cf.  the  Causa  Mediolanen., 
15  Feb.  1 910,  in  the  Acta  Ap.  Sedis.,  II,  p.  206  ss.  But  whether  there  is  tacit  dele- 
gation where  a  parish  priest,  for  instance,  sees  another  priest  officiating  at  a 
marriage  in  his  place,  and  allows  him  to  proceed  without  protest,  must  depend 
upon  the  particular  circumstances  of  the  case.  This  at  least  is  certain,  that  the 
silence  of  the  parish  priest  does  not  suffice,  where  he  is  under  an  erroneous 
impression  that  the  priest  in  question  needs  no  delegation.  Cf.  Coll.  Brug.,  t.  X, 
p.  609  s.  See  also  the  decree  of  the  S.  C.  de  Sacr.,  12  March  1910,  ad  61", 
and  compare  with  Coll.  Brug.,  t.  XV,  p.  316  s.  In  the  last  named,  following  the 
decree  quoted,  we  have  laid  it  down  as  a  practical  rule,  that  one  should  abstain 
from  assisting  at  a  marriage  without  having  obtained  beforehand  an  express 
delegation,  excluding  all  possible  doubt.  It  is  better  still  to  obtain  a  delegation  in 
writing,  if  one  happens  to  be  a  stranger  in  the  parish.  Cf.  Coll.  Gand.,  t.  II,  p.  193 ; 
Instructions  du  Vicariat  de  Rome,  1.  c,  p.  614. 

3.  Cf.  Th.  Pr.  Quartalschr.,  1911,  p.  127  ;  Wernz,  o.  c,  n.  180,  note  218.  There 
is  not  much  occasion  to  trouble  oneself  about  the  acceptance,  less,  indeed,  now 
than  formerly,  as  there  must  be  a  positive  act  on  the  part  of  the  delegate  m  assist- 
ing at  the  marriage  ;  and  it  is  almost  impossible  that  this  act  should  not  include 
his  tacit  acceptance  of  the  delegation.  Still  such  grotesque  cases  may  occasionally 
arise.  Thus  the  Th.  Pr.  Quartalschr.,  1911,  p.  125  s,,  gives  the  case  of  a  parish 
priest  who  was  provided  with  the  required  delegation,  but,  not  caring  for  it,  and 
wrongly  persuading  himself  of  its  inutility,  officiated  at  the  marriage  on  his  own 
account.  See  also  the  Causa  Divionen.,  decided  by  the  S.  Rota,  30  Jan.  1911 
(A.  A.  S.,  Ill,  p.  284  ss.),  where  the  question  of  acceptance  is  clearly  stated,  and 
the  following  conclusion  is  arrived  at:  the  affirmative  opinion  is  the  more  prob- 
able, but  it  is  not  certain,and  therefore, if  a  marriage  had  been  contracted  before 
a  priest  who  was  ignorant  of  the  fact  of  delegation,  it  could  not  be  pronounced 
null  and  dissolved  on  these  grounds  ;  it  would  be  necessary  to  have  recourse  to 
Rome  and  to  lay  the  case  before  the  Holy  See.  Cf.  N.  R.  th.,  1911,  p.  664  ss. 

3.  For  instance,  in  the  case  in  which  a  parish  priest,  refusing  to  assist  at  the 
marriage  of  a  certain  person  and  to  d«legate  another  priest  in  his  place,  should 
be  deceived  by  the  employment  of  a  false  name,  and  so  give  his  permission, 
Cf.  De  Becker,  DeMatr.,  p.  106, 


112  THE  FORMALITIES  OF  THE   CONSENT 

d)  and.  mi  d/  Finally,  the  delegation  must  not  have  been  duly  revoked,  nor 
rcvo  6  .  j-jg^yg  lapsed  spontaneously.  The  delegation  does  not  lapse  hy  the 
death  of  the  principal,  or  by  his  resignation  or  removal,  in  relation 
to  a  matter  already  begun,  that  is  to  say,  when  the  first  step  has 
been  taken  with  reference  to  the  cause  for  which  the  delegation 
was  given  ;  moreover,  it  does  not  lapse  in  relation  to  other  mat- 
ters, provided  it  was  given  for  all  causes,  or  even  for  a  particular 
cause  with  directions  to  carry  it  out  ('). 

In  addition  to  this,  the  general  principles  concerning  delegation 

ought  to  be  applied  here. 

The  Church      Thus  the  Church  sometimes  supplies  what  is  wanting  in  the  dele- 

^suMlies!    gs-tion  and  renders  the  assistance  of  the  delegate  valid,  notably  in 

the  case  in  which  he  has  received  his  delegation  from  a  competent 

authority,  though  it  is  invalid  owing -to  some  hidden  defect  (*).  Such 

would  be  the  case  of  a  delegate  who,  apart  frorp  the    hypothesis 

given  above,  assisted  at  a  marriage  in  ignorance  of  the  fact  that 

his  principal  was  dead  at  the  time.  Cf.   Collat.  Brtig.,  t.  VII,  p. 

267  s. 

Delegation       The  delegation  ma.y  hQ  giyen.  ior  the  universality  of  causes,  or  it 

versalitTof  ^^7  ^^  Special  and  concern  only  Si particular  cause. 


ifoi 


causes  and  for     fhe  first  hypothesis  is  verified,  when  «  a  delegate  is   charged 
a  particular      .  ,      ,,  .  ,  ,  •  ,  •      ,  p 

cause.      With  all  causes  in  general,  or  at  least  with  a  certain  class  of  causes, 

as,  for  example,  with  matrimonial  causes  entrusted  to  him  collect- 
ively, though  this  delegation  be  restricted  either  as  to  time...  or 
as  to  place  »  (').  The  second  hypothesis  is  that  of  a  delegation   re- 


I.  See  on  this  subject  what  we  have  written  at  considerable  length  in  the 
Coll.  Brug.,  t.  VII,  p.  264  ss.  In  the  diocese  of  Bruges,  special  provision  is 
made  for  cases  of  resignation  or  of  translation  :  «  Parochus  ad  alium  locum 
nominatus  vel  officio  renuntians,  ex  delegatione  nostra  jurisdictionem  pastoralem 
in  parochia  unde  transfertur  conservabit,  donee  a  successore  fuerit  monitus  quod 
hie  administrationem  parochiae  in  se  suscepit  ».  Liber  manualis,  p.  163. 

3.  This  would  be  the  case  of  a  titulus  coloratus  together  with  an  error  com- 
munis, and  it  would  be  necessary  to  apply  to  the  delegate  the  principle  invoked 
in  the  case  of  the  parish  priest  himself,  viz.,  that  the  Church  supplies  what  is 
wanting  in  his  qualification. 

3.  Reiffenstuel,  o.  c,  1. 1,  tit.  39,  no  31.  In  order  that  one  may  be  delegated 
for  the  universality  of  matrimonial  causes,  it  is  not  sufficient  that  he  should  be 
delegated  to  assist  at  all  marriages,  but  it  must  be  a  delegation  that  enables  him 
to  deal  with  all  matrimonial  causes,  i.  e,,to  examine  the  engaged  parties,  to  publish 
the  banns  and  to  fulfil  all  the  duties  of  a  parish  priest  with  relation  to  marriages. 
Cf.  Gasparri,  0.  c,  no  945  ;  Rev,  eccl.  de  Metz,  1910,  p.  140  ss. 


THE  FORMALITIES   OF  THE   CONSENT  II3 

stricted  to  a  single  cause,  or  to  a  number  of  clearly  specified  causes. 
As  regards  the  faculty  of  subdelegating  :  the  rule  is  that  the  dele- 
gate possesses  it  in  the  first  hypothesis,  but  not  in  the  second, 
unless  he  has  been  delegated  by  the  supreme  or  Papal  authority, 
for  some  other  reason  than  in  consideration  of  his  personal  merits, 
or  has  received  expressly  the  faculty  of  subdelegating.  A  delegate 
cannot  subdelegate  for  the  universality  of  causes  (*),  neither  can 
he  subdelegate  anyone  with  power  for  him  to  subdelegate  in  his 
turn  f). 

Note,  a)  The  faculty  of  administering  the  sacraments,  given  by 
the  Bishop  to  the  curates  of  a  parish,  does  not  carry  with  it,  as  a 
general  rule,  and  especially  in  Belgium,  the  delegation  required 
for  assisting  at  marriages.lt  would  sometimes  be  a  convenience,  as 
we  have  just  said,  if  parish  priests  granted  this  to  their  curates, 
restricting  it  to  occasions  when  the  parish  priest  is  absent,  and 
granted  it  for  the  universality  of  matrimonial  causes,  or  with 
power  to  subdelegate.  This  is  the  advice  given  by  the  Bishop  of 
Metz,  in  the  Rev.  eccl.  de  Metz,  1908,  p.  302  ;  see  also  Leitner, 
Ne  temere,  p.  47,  where  he  quotes  the  same  disposition  for  the 
diocese  of  Passau  and  that  of  Limburg  ;  cf.  Coll.  Brug.,  t.  V, 
p.  310  and  t.  IV,  p.  116  s.  ('). 

b/  Formerly,  under  the  Tridentine  discipline,  certain  marriages, 
especially  in  the  larger  towns,  were  exposed  to  the  danger  of  nullity  owing 
to  frequent  changes  of  domicile  or  of  quasi-domicile.  Many  engaged  parties, 
having  recently  removed  from  one  parish  to  another,  went  to  be  married 
before  a  parish  priest  who  had  not  the  requisite  powers.  To  obviate  this 


I.  Cf.  Reiffenstuel,  1,  c,  n.  55  ss. ;  Gennari-Boudinhon,  o.  c,  3a  P.,  con- 
sult. 64,  no  5.  There  is  no  reason  why  the  delegate  should  not  subdelegate 
habitually. 

3.  See  Pastor  Bonus,  1907,  p.  161. 

3.  The  Holy  See  does  not  disapprove  of  the  custom  in  force  in  certain  places, 
in  accordance  with  which  the  parish  priest  delegates  in  due  form,  hut  once  for 
all,  another  priest  to  take  his  place  in  assisting  at  marriages.  The  S.  C.  de  Sacr., 
15  March  1910,  ad  6"",  in  reply  to  a  question  on  this  point,  tacitly  granted  per- 
mission to  maintain  this  custom,  provided  it  was  not  contrary  to  local  legis- 
lation. See  above,  under  no  64,  where  we  observed  that  not  a  few,  especially 
Bishops  of  Ncrth  America,  have  delegated  curates  or  assistants  to  be  present  at 
marriages  in  their  respective  parishes  or  in  the  whole  diocese. 

I 


114  THE  FORMALITIES  OF  THE   CONSENT 

danger  the  parish  priests  or  the  Ordinaries  sometimes  had  recourse  to  a 
general  and  mutual  delegation  between  all  the  parish  priests  of  the  same 
town. 

The  S.  C.  C,  having  been  consulted  with  regard  to  this  arrangement, 
approved  of  it  by  a  decree  dated  9  Nov.  1898,  subject  to  certain  precau- 
tions, a  list  of  which  may  be  found  in  the  Coll.  Brug.,  t.  IV,  p.  244  ss., 
together  with  the  text  of  the  decree  of  1898  ;  compare  also  t.  V,  p.  308, 

and  t.  XIII,  p.  66  with  the  passages  quoted  (*). 
66. 
Conditions  of     2.  Conditions  for  the  valid  assistance  of  the  delegate  :  According 

^thep^t  of  ^^  Article  VI  of  the  Decree,  the  delegate  must  observe  «  the  limits 
the  dcUgatc  of  his  mandate  and  the  rules  laid  down...  for  the  parish  priest  and 
the  Ordinary  of  the  place*.  It  is  necessary,  therefore,  that  he 
should  not  be,  publicly  and  by  name,  excommunicated  or  suspend- 
ed from  his  office.  He  must  be  invited  and  asked  (*)  to  assist  at 
the  marriage,  he  must  not  be  influenced  to  do  so  by  violence  or 
grave  fear,  and  he  must,  as  delegate,  ask  and  receive  the  consent 
of  the  parties,  keeping  himself  strictly  within  the  limits  of  his 

mandate. 
67. 
There  must      C.  The  assistance  of  the  witnesses. 

wsses.  It  is  necessary  and  sufficient  that  they  should  assist  as  witnesses. 

For  this  purpose  1 .  it  is  sufficient  that  they  should  assist  pas- 
sively, without  any  act  on  their  part  being  required. 
who  must  f>e      2.  It  is  absolutely  necessary  : 
Tresent  ^1  ^^^^  ^^^Y  should  be  present,  not  only  physically,  but  also 

morally.  It  is  not  enough  for  the  witness  to  be  present  in  a  merely 
material  manner,  e.  g.,  fast  asleep,  or  entirely  taken  up  with 
other  occupations,  at  the  moment  when  the  consent  is  given.  He 

1.  In  conformity  with  this  decree,  the  Bishop  of  Bruges,  in  the  Congr.  Prosyn. 
of  1898  (Coll.  Brug.,  t.  IV,  p.  377),  granted  «  to  the  parish  priests  of  any  place  in 
the  diocese,  in  which  there  are  two  or  more  parishes,  the  faculty  (with  power  to 
subdelegate)  to  assist  at  the  marriages  of  those  whose  banns  they  had  published 
after  previous  inquiry,  even  if  they  had  in  the  meantime  left  their  parish,  but 
not  their  diocese  ». 

These  provisions  are  now  obsolete ;  for,  on  the  one  hand,  under  the  new 
discipline,  all  parish  priests  validly  assist  at  all  marriages  within  the  limits  of 
their  own  territory  ;  and,  on  the  other  hand,  the  diocesan  decree  affected  only 
the  question  of  validity,  as  we  have  shown  in  the  Coll.  Brug.,  t.  V,  p.  309. 

2.  It  would  certainly  seem  sufficient  that  the  parish  priest  himself  should  have 
been  invited  and  asked ;  through  him  his  delegate  is  also  considered  to  have  been 
invited. 


THE  FORMALITIES  OF  THE  CONSENT  II5 

must  (except  in  the  case  of  affected  ignorance)  (*)  know  that  the 
marriage  is  being  contracted  in  his  presence,  and  must  accordingly 
hear  the  words  of  the  contracting  parties,  or  perceive  the  signs 
which  express  their  mutual  consent.  In  a  word,  it  is  necessar}'  and 
sufficient  that  the  witnesses  should  be  able  to  attest,  from  their 
own  knowledge  of  the  fact,  that  the  marriage  has  duly  taken  place 
between  the  respective  parties  ('). 

This  is  what  is  meant  by  moral  presence.  Such  moral  presence 
is  quite  consistent  with  the  fact  that  the  witness  was  present  at 
the  ceremony  by  chance,  or  as  the  result  of  deceit  or  violence.  The 
exception  made  in  the  decree  Ne  Temere  affects  only  the  parish 
priest  and  the  delegate. 

b/  It  is  necessary  that  the  witnesses  should  be  made  use  of  as  and  must  be 
such  ;  in  other  words,  as  we  have  said  in  n°  64,  the  action  of  the  ^  wit^s/s. 
engaged  parties  should  be  such  as  to  imply  and  to  make  apparent, 
to  some  extent  at  least,  their  desire  to  contract  marriage  in  the 
presence  of  these  persons  as  witnesses. 

There  is,  therefore,  a  twofold  condition  to  be  fulfilled:  the  one  on 
the  part  of  the  witnesses,  viz.,  their  moral  presence  ;  and  the  other 
on  the  part  of  the  engaged  parties, viz., their  intention  to  take  them 
as  witnesses.  There  is  no  need  of  an  express  invitation  ;  it  is  suffi- 
cient to  have  the  witnesses  present  as  such,  so  that  this  second 
condition  is  practically  included  in  the  foraier.  Thus,  all  that  is 
requisite  is  that  the  attention  of  the  bystanders  should  be  called 
to  what  is  going  on,  and  that  the  contracting  parties  should  then, 
in  their  presence,  give  their  mutual  consent, in  such  a  manner  that 
the  witnesses  may  duly  perceive  that  the  marriage  is  taking 
place  ('),  without  the  formality  of  a  previous  invitation  (*). 

I.  His  assistance  would  then  be  valid,  even  if  he  had  perceived  nothing. 
Coll.  Brug.,  t.  XII,  p.  470. 

3.  It  follows  that  the  presence  of  the  witnesses  may  be  regarded  as  valid,  even 
if  they  were  not  standing  by  the  side  of  the  contracting  parties,  as  might  happen 
through  forgetfulness. 

3.  Thus,  e.  g.,  the  sacristan,  who  assists  the  parish  priest  in  the  celebration  of 
the  marriage,  is  reckoned  a  competent  witness,  and,  if  he  has  reallypaid  attention 
to  the  giving  of  the  matrimonial  consent,  he  is  a  valid  witness,  even  though  he 
has  not  been  formally  notified  beforehand.  It  is  the  same  with  other  persons  pre- 
sent, at  least  if  the  bride  and  bridegroom  are  conscious  of  their  presence. 

Cf.  Coll.  Brug.,  t.  XII.  p.  471  s. ;  Bassibey,  Clandestinite,  n°  153  ;  Deshaye3, 
o.  c,  qu.  127  together  with  the  documents  given  there  iV.  R.  Th.,  XVII,  p.  107  ss. 

4.  The  invitation  required  by  the  new  ecclesiastical  law  applies  only  to  the 
case  of  the  parish  priest  or  his  delegate. 


Il6  THE  FORMALITIES  OP  THE  CONSENT 

Observe  that  under  the  discipHne  of  Pius  X,  as  under  that  of  the 
Council  of  Trent,  any  person  capable  of  the  office  may  be  validly 
employed  as  a  witness,  but  that,  nevertheless,  it  is  unlawful  for 
non-catholics  to  act  as  witnesses  at  a  Catholic  marriage  ('),  and 
it  is  indecorous  to  employ  women  in  that  capacity  (*). 

68. 
Exceptions'.      II.  Exceptions. 
to  in  danger 
of  death;        First  case.   «  When  danger  of  death  is  imminent,  and  the  parish 

priest  or  theOrdinary  of  the  place,  or  a  priest  delegated  by  one  or  the  other 

of  them,  cannot  be  had,  in  order  to  provide  for  the  relief  of  conscience, 

and  (if  necessary)  for  the  legitimation  of  offspring,  marriage  may  be 

validly  and  lawfully  contracted  before  any  priest  and  two  witnesses  > . 

Art.  VII,  Decree  Ne  Temere, 

It  is  a  question  here  of  a  valid  (and  at  the  same  time  lawful) 
marriage  before  any  priest  whatever,  even  before  one  who  is  sus- 
pended and  excommunicated  by  name  and  deprived  of  all  delega- 
tion ('),  and  two  witnesses. 

The  validity  (and  lawfulness)  of  such  a  marriage  is  subject  to 
three  conditions  : 

1.  It  is  necessary  that  one  of  the  contracting  parties  at  least 
should  be  in  danger  of  death,  no  matter  from  what  cause. 

2.  It  is  necessary  that  it  should  be  impossible  either  to  send  for 
the  competent  priest,  i.e.,  the  parish  priest  or  the  Ordinary  or  the 
priest  delegated  by  them,  or  to  obtain  the  requisite  delegation  (*) 


1.  Instr.  of  the  S.  C.  de  P.  F.,  g  Dec.  i8aa  (Collectanea),  no  yjg) ;  decree  of  the 
C.  S.  O.,  19  Aug.  1891  (Collectanea,  no  1855) ;  decree  of  the  S.  C.  de  Sacr.,  la 
March,  ad  4^,  where  we  read  «  quoad  qualitates  testium,  a  decreto  Ne  temere 
nihil  esse  immutatum  ». 

2.  The  decrees  of  the  diocese  of  Bruges  P.  II.  tit.  11,  art.  4,  par.  4,  say  :  <  If 
the  practice  anywhere  exists  of  admitting  women  as  witnesses  in  the  celebration 
of  marriage,  let  it  be  abrogated,  as  unbecoming  >. 

3.  It  even  seems  probable  that  the  priest  in  question  would  assist  validly  in 
a  case  in  which  he  had  not  been  asked  to  do  so  ;  it  would,  however  be  neces- 
sary for  him  to  ask  the  consent  of  the  parties.  Cf.  Vermeersch,  Ne  temere, 
no  y^bis  J  Arribas,  o.  c,  p.  loi ;  compare  with  Wouters,  o.  c,  p.  68. 

4.  No  regard  must  be  had  to  the  delegation  wich  can  be  obtained  only  by 
telegraph  or  telephone ;  but  it  would  be  otherwise  if  it  can  be  obtained  by 
letter,  even  by  express  letter.  A  probable  fear  of  not  having  the  requisite  time  for 
the  recourse,  is  also  suificient.  Cf.  Instructions  du  Vicariat  de  Rome,  1.  c,  p.  616  s. 


THE  FORMALITIES  OF  THE  CONSENT  II7 

and  that  the  reason  should  be  the  imminent  danger  of  death,  or 
other  motive  ('). 

3.  Finally,  there  must  be  an  urgent  necessity  for  marrying, 
either  for  the  relief  of  the  conscience  of  the  sick  person,  or  for  the 
legitimation  of  the  offspring. 

This  last  condition  is  fulfilled  :  a/  as  often  as  the  dying  person, 

even  apart  from  antecedent  concubinage,"  is  bound  in  conscience 

to  marry,  e.g.,  because  he  cannot  otherw^ise  remove  the  proximate 

occasion  of  sin,  or  because  he  has  seduced  a  woman  under  a 

promise  of  marriage,  or  again  because  a  marriage  is  the  only 

means  of  sparing  or  restoring  the  good  name  of  his  accomplice  (*). 

b/  When  it  is  a  question  of  rendering  [legitimate  the  birth  of  a 

child  conceived  out  of  wedlock,  or  of  legitimating  a  child  already 

born  ('). 

69. 
Second  case.  Marriage  can  be  validly  (and  lawfully)  contracted  20  in  the  cast 

before  the  witnesses  alone,  without  the  presence  [of  the  competent  priest,  "/(^^g^Lticf 

whenever  the  engaged  parties  can  neither  send  for  him  nor  go  to  him 

without  grave  inconvenience,  and  have  already  waited  for  a  full  month. 

Explanation. 

These  are  the  words  of  the  S.  C.  de  Sacr.,  in  the  decree  of  the 
12  March  1910,  in  reply  to  the  first  doubt  proposed.  They  contain 
an  authentic  interpretation  of  Article  VIII  of  the  Decree  Ne 
Temere,  by  which  this  notable  privilege,  in  modification  of  the 
general  discipline,  is  granted.  The  privilege  consists  in  this  : 

I.  Thus  II  Monitore  EccL,  1910,  p  .137  s,,  reports  the  case  of  a  priest  who 
could  not  in  conscience  send  for  the  competent  parish  priest  or  ask  his  delegation 
since  it  was  through  confession  that  he  had  become  acquainted  with  a  case  of 
concubinage  that  nobody  knew  of.  Cf.  also  Coll.  Brug.,  t.  XVI,  p.  195  ss. 

3.  We  would  not  venture  to  say  with  Vermeersch,  Nc  Temere^  n°  73,  that  this 
obligatory  condition  is  also  fulfilled  c  where  the  sick  man  has  occasioned  his 
accomplice  (or  her  family)  a  material  loss,  which,  according  to  the  law  of  the 
country,  can  be  more  readily  repaired  if  he  leaves  a  widow  behind  him  ;  and  in 
the  case  in  which  a  marriage  would  put  an  end  to  an  inveterate  family  quarrel, 
or  prevent  a  patrimony  from  being  turned  to  a  bad  use  >. 

3.  This  affects  natural  WltgiWrnaXe  children,  those  whom  a  subsequent  mar- 
riage legitimates  of  itself;  indirectly  it  affects  other  bastards  who  are  born 
neither  of  an  adulterous  nor  of  a  sacrilegious  union.  The  priest  assisting  at  the 
marriage  can,  in  virtue  of  art.  VII,  in  ordine  ad  matrimoninm,  legitimate  these 
illegitimate  children  with  the  exception  of  the  two  classes  mentioned  above. 
See  below,  no  369  ;  VAmi  du  clerge,  1911,  p.  713. 


ii8 


THE  FORMALITIES  OF  THE  CONSENT 


Nature  of 
this  incon- 
venience. 


In  order  to  contract  marriage  validly  (and  lawfully)  without 
the  presence  of  the  priest, it  is  sufficient  l.that  there  should  be  a  grave 
inconvenience  in  sending  for,  or  in  going  to  the  competent  priest, 
i.  e.,  the  parish  priest  of  the  place  or  his  delegate  (')  ;  2.  that 
this  state   of  things  should  have   already  lasted    for  a    month. 

This  twofold  condition  being  fulfilled,  the  engaged  parties  can 
validly  (and  lawfully)  marry  without  any  priest  whatever,  hut  in 
the  presence  of  two  witnesses  ;  the  law  of  clandestinity  does  not  lapse 
entirely,  but  only  for  the  part  that  it  is  impossible  to  observe  (^). 

With  regard  to  the  grave  incovenience  : 

There  is  no  special  enactment  as  to  its  nature  ;  it  matters  little 
what  its  nature  may  be,  or  what  persons  it  may  affect,  whether 
the  engaged  parties,  or  the  priest,  provided  only  it  be  grave  ; 
observe  too,  that  it  matters  little  whether  it  be  general  ov particular^ 
common  to  a  whole  district  or  not. 

Up  to  the  present,  relying  on  the  wording  of  art.  VIII  :  «  Si... 
in  aliqua  regione  >,  many  interpreters  maintained  that  the  privilege 
was  applicable  only  in  the  case  of  a  general  impossibility,  affecting 
the  greater  part  of  the  inhabitants  of  a  country  (') ;  or,  at  the  least, 
they  thought  it  necessary  to  require  an    impossibility  that  in 


1.  Consequently,  if,  in  default  of  their  own  parish  priest  (or  of  his  delegate), 
the  engaged  parties  could  easily  go  to  another  parish,  and  be  married  there 
before  the  parish  priest  of  the  place,  they  could  not  make  use  of  the  privilege. 
On  the  other  hand  they  could  do  so, if  such  an  arrangement  were  not  practicable, 
even  though  in  their  own  parish  they  could  go  to  another  priest,  but  not  to  their 
own  parish  priest  or  his  delegate.  Cf.  the  decree  of  the  S.  C.  C,  27  July  1908,  ad 
S",  and  compare  with  Ojetti,  on  the  Votum  to  this  decree,  in  the  Anal,  eccl., 
1908,  p.  341  s. 

2.  The  assistance  of  the  witnesses  is  then  subject  to  the  general  rules  describ- 
ed in  no  67,  but  regard  should  be  had  to  the  recommendation  of  the  S.  C.  de  P. 
P.,  in  its  letter  23  June  1830  :  «  In  this  case  let  the  parents  choose  two  witnesses, 
who  together  with  the  bride  and  bridegroom  and  their  relations,  should  go  to 
the  church,  and  kneeling  there  recite  the  usual  acts  of  faith,  hope,  charity  and 
contrition,  that  the  engaged  parties  may  thus  dispose  themselves  suitably  for 
the  marriage.  Then  let  the  bride  and  bridegroom  rise  and  express  their  mutual 
matrimonial  consent  in  the  presence  of  the  witnesses  :  after  having  given  thanks 
to  God,  let  them  return  to  their  home.  Should  it  be  impossible  to  go  to  the 
church,  let  the  same  ceremonies  be  observed  at  home  ».  Gasparri,  o.  c,  p.  970. 

3.  Cf.,  among  others,  De  Becker,  Legislatio  Nova,  1908,  p.  36  ;  Standaert, 
in  the  Coll.  Gand.,  I,  p.  151  ss. ;  Wouters,  o.  c,  p.  75  ss. 


THE  FORMALITIES  OF  THE  CONSENT  Iig 

some  way  affecUd  a  region,  or  extended  to  a  whole  country,  though 
affecting  only  a  limited  number  of  the  inhabitants  (*). 

But  at  the  present  time,  considering  the  text  and  context  of  the 
decree  of  i2  March  1910,  it  can  be  held  as  certain  that  any  grave 
inconvenience,  whatever  it  may  be,  even  a  simply  particular  and 
individual  inconvenience,  is  to  be  taken  into  account,  and  is  suffi- 
cient to  legalize  marriage  without  a  priest.  Not  only  are  the  terms 
of  the  Decree  as  wide  as  they  can  be  ;  but  in  addition  to  this 
the  only  word  (regio)  which  caused  difficulty  and  seemed  to 
exclude  cases  of  particular  impossibility,  is  omitted  ;  and,  what  is 
very  significant,  this  omission  occurs  in  the  answer  to  a  question 
that  was  put  for  the  purpose  of  ascertaining  how  this  particular 
term  was  to  be  interpreted. 

Application. 

It  is  apparent  therefore,  that  advantage  can  be  taken  ot  this  Application. 
privilege  in  Belgium,  France,  Germany,  Holland,  and  elsewhere, 
in  cases  in  which  it  is  important  that  parties  should  be  married 
before  the  Church,  who  cannot  he  married  before  the  civil  officer, 
and  whose  parish  priest  y  after  the  lapse  of  a  month's  notice,  is  unable  to 
assist  at  their  marriage  without  exposing  himself  to  the  severe  penal- 
ties of  the  Penal  Code  (art.  267)  (^). 


I.  We  maintained  the  probability  of  this  interpretation  of  art.  VIII,  requiring 
an  impossibility  affecting  only  a  limited  number  of  the  inhabitants  of  a  region, 
and  not  a  common  or  general  impossibility,  in  the  Co//.  Brw^.,  t.  XIII,  p.  647 
s.  and  also  in  the  first  edition  of  the  present  work  ;  and  we  returned  to  the 
charge,  to  reply  to  our  critics,  in  the  Coll.  Brug.,  t.  XV,  p.  107  ss. 

Our  opinion  found  favour  with  several  authors  quoted  in  the  last  note  of  this 
number  6g.  They  went  even  further  :  Card  Gennari,  Commento  p.  73,  and 
Heiner,  Archiv.  fur  K.  Kirchenrccht,  1908,  p.  485,  taught  that  at  that 
time  already,  art.  VIII  was  to  be  understood  in  the  sense  of  particular 
impossibility.  Boudinhon,  Canon.  Contem.p,  1910.  p.  264,  was  of  the  opposite 
opinion. 

3.  We  proposed  this  application  of  the  privilege,  before  the  decree  of  the  I3 
March  igio,  in  the  Coll.  Brug.,  t.  XIII,  p.  646  ss.,  and  t.  XV,  p.  106  ss.,  as  well 
as  in  our  first  edition.  The  text  of  art,  VIII,  seemed  already  to  justify  this 
interpretation.  We  also  invoked  the  analogy  between  our  case  and  that  solved 
by  the  Holy  See  in  favour  of  the  island  of  Cura9ao :  in  1785  the  S.  C.  de  P.  F. 
(Collectanea,  no  1515)  permitted  marriage  to  be  contracted  there  before  two 
witnesses  only,  for  the  reason  that  religious  marriage  was  forbidden  there 
before  the  civil  ceremony,  under  the  penalty  of  a  fine  of  500  florins  to  be  paid 


J20  THE  FORMALITIES  OF  THE  CONSENT 

It  would  certainly  be  a  grave  inconvenience  for  the  priest  to 
officiate  at  the  marriage  under  these  circumstances  (*)  ;  and 
consequently  as  soon  as  he  refuses  to  do  so,  in  conformity  with 
the  law,  the  one  condition  required  by  the  decree  of  the  S.  C.  de 
Sacr.  comes  into  operation.  It  is  useless  henceforward  to  object, 
as  one  might  have  done  before  with  some  show  of  reason,  that 
here  is  no  impossibility  that  is  general  or  that  affects  the 
region. 

We  do  not  say  that,  if  the  parties  found  it  impossible  to  fulfil 
the  civil  ceremonies  before  the  religious  marriage,  this  would  be 
a  sufficient  reason  for  them  to  proceed  at  once,  and  on  their  own 
initiative,  to  marry  before  witnesses.  The  parish  priest  might, 
if  he  thought  fit,  decide  to  assist  at  the  marriage  either  personally 
or  by  his  delegate,  in  spite  of  the  law  and  the  legal  consequences  ; 
and  in  that  case  there  would  be  no  reason  why  the  parties  should 
not  present  themselves  before  the  priest,  since  they  are  themselves 
exempt  from  any  penalty  under  the  provisons  of  the  Code.  It  is 
necessary,therefore,  that  the  parties,  after  having  duly  invited  the 
competent  priest,  should  assure  themselves  that  he  refuses  his 
assistance,  and  that  they  should  allow  a  month  to  elapse  before 
marrying  (*).  It  is  in  like  manner  necessary  that  there  should  be 


by  the  parish  priest,  while  Catholics  had  to  pay  50  florins  for  the  celebration  of 
the  civil  marriage. 

A  question,  however,  had  already  been  addressed  to  the  S.  C.  C.  on  this 
subject  :  €  Should  provision  be  made,  and  how,  for  the  case  in  which  the  civil 
law  forbids  the  parish  priest  under  heavy  penalties  to  assist  at  a  marriage 
of  the  faithful  before  the  civil  ceremony,  when  this  cannot  take  place,  and, 
nevertheless,  the  celebration  of  the  marriage  is  absolutely  necessary  for 
the  salvation  of  souls  ?  >  To  this  question  the  Congregation  replied, 37  July  1908  : 
«  non  esse  interloquendum  »  (i.  e.,  there  is  no  answer).  It  was  unwilling  to  solve 
this  doubt  directly  and  explicitly,  perhaps,  out  of  consideration  for  the  civil 
authority. 

I.  Cf.  Coll.  Brug.y  t.  XIII,  p.  614  and  648. 

3.  The  only  person  to  be  invited  with  a  view  to  his  assisting  at  their  marriage, 
either  personally  or  by  his  delegate,  within  the  limits  of  his  own  territory,  is 
the  parish  priest  (or  Ordinary)  of  the  parties.  Other  parish  priests  are,  indeed, 
competent  to  assist  validly  within  their  respective  territories,  but  it  would  be 
a  grave  inconvenience  to  go  and  sound  them  on  the  subject,  and  besides,  they 
would  have  the  same  grave  reason  for  refusing  to  officiate  as  their  own  parish 
priest. 


THE  FORMALITIES  OF  THE  CONSENT  121 

no  canonical  impediment,  in  consequence  of  which    the  parish 
priest  might  have  declined  to  officiate. 

Such  are  the  wise  precautionary  measures  necessar}'  to  prevent 
the  abuses  that  would  not  fail  to  result  from  marriages  of  this 
kind,  if  people  could  have  recourse  to  them  without  first  notifying 
the  parish  priest  or  the  Ordinary,  or  if  any  refusal  whatever  on 
the  part  of  the  parish  priest,  even  for  canonical  reasons,  were 
sufficient  to  justify  them.  On  the  other  hand  this  solution  is  well 
adapted  for  avoiding  the  penalties  levelled  against  those  who 
infringe  the  law  requiring  the  precedency  of  civil  marriage  ;  it 
affords  the  best  remedy  for  the  grave  evils  consequent  on  this  law, 
not  only  in  the  case  of  marriages  in  extremis,  in  favour  of  which 
the  penalty  is  abrogated  in  case  of  urgency,  but  also  in  many 
others  ('). 

The  interpretation  we  have  just  proposed  of  art.VIII  Ne  tentere, 
and  of  the  decree  of  1910,  we  do  not  impose  it  as  being  absolutely 
certain  ;  however,  it  does  not  appear  easy  to  deny  its  solid  proba- 
bility. Thence,  we  may,  till  ampler  information,  apply  it  by  virtue 
of  the  principles  further  enunciated  in  n"  240  :  in  case  of  any 
doubt  regarding  the  law  (dubium  juris),  as  to  the  existence 
of  an  impediment  of  the  ecclesiastical  law,  the  Church  sup- 
phes  (^). 


1.  For  further  particulars  see  below,  no*  230,  231  and  232,  and  the  Coll. 
Brug,,  t.  XV.  p.  105  s.,  where  will  be  found,  in  addition  to  the  cases  in  which 
the  present  solution  is  applicable,  an  interpretation  of  the  penal  clause,  from 
which  it  will  appear  that  neither  the  parish  priest  who  counsels  such  a  course, 
nor  the  witnesses  who  assist  in  his  absence,  are  liable  to  any  penalty. 

2.  Here  the  list  of  authors  sharing  the  same  opinion  :  Ojetti,  who  first  of  all 
proposed  it  in  his  commentary  Jus  Planum,  no  122,  and  supported  it  in  the 
Votum  which  has  been  spoken  of,  as  also  in  his  Synopsis,  \o  claudestinitast 
no  1135  ;  Vermeersch,  De  Religiosis-Periodica,lV ,  no  272  ss.;  Van  den  Acker, 
o.  c,  p.  79  ss.;  Standaert,  in  Collationes  Gandavenses,  II,  p.  187  ss.,  where 
he  retracts  his  former  contrary  sentence  ;  De  Arquer,  novissima  discipUna 
sobra  Esponsal-es  y  Matrimonio,  2a  ed.,  Barcelona,  1910,  no  284,  and  in  Sup- 
plemento  (1911),  no  8  ;  Choupin,  o.  c,  p.  163  s.;  Trbnta,  o.  c,  n.  98  s.  ; 
Dr  Kaas,  in  Pastor  Bonus,  1911  (November),  p.  iii ;  and  especially  Wernz, 
Jus  Decretalium,  3«  ed.  (prepared  by  Laurcntius),  IV,  p.  300  ;  Arribas, 
o.  c,  p.  Ill,  where,  however,  he  practically  advises  the  recourse  to  the  Holy 
See,  in  a  particular  case.  We  have  not  found  any  others  sharing  a  contradictory 


122  THE  FORMALITIES  OF  THE  CONSENT 

Observe  that  according  to  the  solution  of  doubt  3,  in  the  decree 
in  question,  the  privilege  may  be  used  even  by  those  who  are 
quite  able  to  obtain  the  services  of  a  competent  priest  in  the 
place  in  which  they  reside,  but  who  deliberately,  and/or  the  purpose 
of  evading  the  general  law,  betake  themselves  to  a  place  where  there 
is  not  one. 

There  still  remains  to  observe  that  in  case  of  art.  VIII,  it  is 
not  required  that  the  witnesses  should  have  been  invited  to  assist 
at  the  marriage,  nor  that  they  request  the  consent  of  the  con- 
tracting parties. 

70. 
Marriages  by     Note. Under  the  new  legislation  of  Pius  X,  as  under  that  of  the  Council 
proxy.       q£  Tygjit^  marriages  by  proxy,  and  also  by  letter,  are  still  permitted  (*). 

In  these  two  cases,  one  at  least  of  the  parties  must  first  invite  the  assis- 
tance of  the  parish  priest.  Then  it  is  necessary,  in  the  former  case,  that  the 
proxy  should,  in  the  name  of  his  principal,  express  consent  in  the  presence 
of  the  parish  priest,who  asks  it,  and  of  two  witnesses  (*).  In  the  second  case 
WouTERs  proposes  the  following  procedure  :  «  The  parish  priest...  in  the 
presence  of  the  witnesses  asks  the  consent  of  the  party  present,  and  he 
writes  to  the  other  party  to  ask  his  (or  her)  consent  in  the  name  of  the 
party  present ;  the  absent  party  writes  in  reply  that  he  accepts  the  con- 
sent of  the  other  party,  and  that  he  gives  his  own ;  finally  the  parish 
priest  reads  this  letter  in  the  presence  of  the  party  present  and  of  the 
same  witnesses,  and  the  consent  of  the  absent  party  is  accepted  by  the 
other  »  (5). 


opinion,  except  De  Becker,  in  The  American  Coll.  Bulletin,  jgii,  p.  35  ;  Bou- 
DiNHON,  Canon,  contemp.,  igio,  p.  364,  and  Ferreres,  Los  Esponsales  y  el  Matri- 
tnonio,  5a  ed.,  Madrid, 1911,  no  806.  Wouters.  o.  c,  y^  ed.,  proves  rather  favour- 
able to  them,  but  speaks  with  less  assurance. 

1.  Cf.  Gasparri,  o.  c,  nos  834,  835,  837  and  833  s.  ;  Anal.  eccl.  1901,  p.  430; 
Gbnnari-Boudinhon,  o.  c,  1*  P.,  cons.  135  ;  Esmein,  o.  c,  no  313  ss.  See  also 
the  Causa  Ravenn.,  decided  19  Jan.  1910  by  the  S.  Rota,  concerning  a  marriage 
contracted  by  letter  under  the  discipline  of  the  Council  of  Trent;  Canon.  Cont., 
1910,  p.  366  s. ;  N.  R.  Th.,  p.  449-464. 

2.  There  must  be  a  special  mandate  which  accurately  specifies  the  person  to  be 
taken  in  marriage  ;  it  is  also  necessary  that  the  intention  of  the  principal  should 
persevere,  at  least  virtually  ;  but  it  matters  little  if,  at  the  exact  moment  that 
the  consent  is  given  by  the  proxy,  the  principal  should  be  asleep,  or  absorbed  in 
other  occupations,  or  even  for  the  moment  mad. 

3.  Cf.  Ned.  Kath.  Stemmen,  1910,  p.  86,  and  Wouters,  o.  c,  p.  461,  where 
will  be  found  the  manner  of  proceeding  in  the  case  in  which  neither  of  the 


the  formalities  of  the  consent  1 23 

Second  point.  Formalities  required  in  order  that 
marriage  may  be  licit. 

I.  General  rule. 

71. 

First  Proposition.  Except  in  case  of  grave  necessity,  the  marriage,   Formalities 

in  order  to  be  licit,  must  take  place  before  the  parish  priest  (or  the  ^J^g  marriage 
Ordinary,  or  the  delegate)  who  should  at  the  same  time  be  the  parish  ^*^*'- 
priest  of  the  parish  in  which  he  assists  at  the  marriage  and  the  particular 
Parish  priest  of  one  of  the  contracting  parties,  or  provided  with  the 
Permission  of  the  same  ;  the  rule  is,  also,  that  the  marriage  should  be 
celebrated  before  the  parish  priest  of  the  bride,  unless  there  is  some  good 
reasofi  to  the  contrary. 

The  parish  priest  (or  the   Ordinary)   whose  business  it  is  to  see  to  As  a  general 
the  celebration  of  the  marriage,  is  the  parish  priest  of  the  place  in  which  ' 

the  parties  have  their  domicile,  or  in  which  they  have  resided  for  a 
month. 

Explanation. 

A.  In  order  that  the  mariage  may  be  licit,  it  is  necessary  that    the  Presence 
(the  Ordinary  or)  the  parish  priest  of  the  parish  in  which  the  ^^/ar  parish 
marriage  takes  place,  and  before  whom  (or  before  whose  delegate)      priest  is 
it  must  be  celebrated  in  order  to  be  valid,  should  be  at  the  same     or  that  of 
time  the  particular  parish  priest  of  one  of  the  contracting  parties  ;  '^thepermis- 
or  ifhe  is  not,   that  he  should  have  received  permission  from  the    sionofthe 
Ordinar}^  or  parish  priest  of  the  parties,  except  in  the  case  of  grave 
necessity. 

lih\^ permission  is  not  a  delegation  properly  so  called,  like  that 
of  which  we  have  spoken  above  in  the  first  point,  and  conse- 
quently it  is  not  subject  to  the  conditions  there  enumerated  ;  thus 
it  is  sufficient  that  it  shoulci  be  tacit  or  even  presumed,  and  it  may 
be  given  to  a  priest  not  specified  by  name  (*).  In  case  of  grave 
necessity  the  permission  may  be  dispensed  with  ;  as  for  instance. 


former ; 


engaged  parties  is  present.  See  also  the   Causa  Ravenn.,  to  which  we   have 
referred  above. 

I.  Thus  also  4;he  parish  priest  of  the  parish  in  which  the  marriage  is  to  take 
place,  who  has  received  from  the  parish  priest  of  the  parties  permission  to  assist 
thereat,  can  transfer  this  permission  to  his  delegate  without  having  received 
any  general  permission  or  special  faculty  to  do  so. 


124  THE  FORMALITIES  OF  THE  CONSENT 

when,  for  serious   reasons,   the  marriage  cannot  be  postponed 
until  the  permission  has  been  obtained  ;  such  a  case  would  be  the 
discovery  of  an  error  as  to  domicile  at  the  very  moment  that  the 
marriage  is  about  to  take  place ;     or,  again,   the  necessity  of 
concealing  the  celebration  of  the  marriage  from  the  parish  priest 
of  the  parties. 
theparish        B.  It  is  sufficient,  in  accordance  with  what  has  been  said,  that 
bri^  rather  ^®  ^^°  assists  at  the  marriage  should  be  the  particular  parish 
'^""*  /*v  "•^  priest  of  one  or  other  of  the  contracting  parties,  or  at  least  that  he 
groom,  ought  should  have  obtained  his  permission  ;  nQ.\'eri\\t\&ss, as  a  general  rule, 
the  marriaie.  ^^  ^^  ^^^  parish  priest  of  the  bride  who  should  assist  ;  it  belongs 
rather  to  him  to  officiate,  or  to  give  permission  to  another  to  do 
so  (').  This   rule,   however,  is  not  strictly  obligatory,   and  any 
legitimate  reason  would  justify  its  non-observance  :  such  occasions 
are  of  frequent  occurrence  (*). 
Thcparticu-      C.  The  Ordinary  or  the  particular  parish  priest,  with  relation 
priestlnthis  ^^  ^^^  celebration  of  marriage  ('),  is  the  Ordinary  or  the  parish 
matter      priest  of  the  place  in  which  the  engaged  parties  have  their  domi- 
cile, or  in  which  they  have  resided  for  a  month. 

Thus  in  order  that  one  should  have  an  Ordinary  or  a  particular 
parish  priest,  it  is  necessary  and  sufficient  that  he  should  have 
acquired  in  the  diocese  or  parish  in  question  either  a  domicile,  or 
a  month's  residence. 

is  the  parish-       1.   The  Domicile 

^domKiU  ^^  acquired  either  by  one's  own  will,  when  it  is  termed,  domicile 
in  fact ;  or  by  the  will  of  another,  in  virtue  of  a  legal  provision, 
when  it  is  termed,  domicile  in  law. 


1.  If  the  bride  is  not  a  Catholic,  it  is  better  to  apply  to  the  parish  priest  of  the 
bridegroom.  See  also  what  we  say  below,  at  the  end  of  n"  73  with  regard  to  vagi. 

2.  These  are  the  provisions  of  the  common  law,  but  they  do  not  prevent 
particular  diocesan  decrees  from  being  strictly  obligatory  on  this  point,  as  is 
the  case  in  the  diocese  of  Bruges,  Stat,  dioec.,  ed.  3«,  P.  II,  tit.  11,  art.  4,  par.  4. 
There  any  legitimate  reason  whatever  does  not  serve  as  an  excuse  for  not 
observing  the  rule. 

3.  The  present  signification  of  the  term  :  particular  parish  priest  (parochus 
proprius),  in  the  matter  of  assistance  at  marriage,  must  not  be  transferred  or 
extended  to  other  matters ;  not  even,  it  would  seem,  as  we  have  remarked  above 
in  n"  36,  to  the  publication  of  banns. 


THE  FORMALITIES  OF  THE  CONSBNT  I25 

DomiciU  in  fact  is  acquired  by  those  who  are  majors  or  eman-  whether  in 
cipated,  by  actual  residence  in  a  place,  with  the  intention  of  •'*'^ ' 
remaining  there  pemianently,  if  nothing  happens  to  call  them 
elsewhere  (').  From  the  moment  that  these  two  elements  are 
united  the  domicile  is  constituted.  This  intention  is  manifested 
either  by  words,  or  by  acts,  inferring  it  by  various  indications  (*). 
Domicile  in  fact  is  not  lost  by  change  of  residence,  provided  one 
has  the  intention  of  returning  to  his  former  parish  and  of  remain- 
ing there,  nor  by  the  mere  intention  to  remove  without  actually 
doing  so  ;  but  it  is  lost  when  both  these  conditions  are  at  the 
same  time  fulfilled,  that  is  to  say,  by  actual  departure  without  the 
intention  of  returning. 

Domicile  in  law  especially  concerns  minors.  In  canon  law,  they  or  in  law, 
have  the  same  domicile  as  their  father,or,in  his  default, the  same  as 
their  mother  or  guardian.  They  lose  their  domicile  in  law,  when, 
after  having  attained  their  majority  or  having  been  emancipated, 
they  positively  renounce  it.  During  their  minority  their  will  can- 
not effect  this,  but  as  soon  as  they  are  of  age  or  duly  emancipated, 
they  have  the  power  to  renounce  their  domicile  in  law.  At  the 
same  time  it  remains  their  domicile  until  they  do  effectively 
renounce  it,  and  they  are  not  considered  to  lose  it  by  the  very 
fact  that  they  are  of  age  or  have  been  emancipated  :  but  that 
renunciation  is  obtained  by  the  fact  of  withdrawal,  joined 
with  the  intention  of  not  returning  to  the  paternal  domicile, 
just  in  the  same  way  as  the  domicile  in  fact  is  lost,  since  the 
legal  domicile  acquired  during  minority,  becomes  the  voluntary 
domicile  on  attaining  majority  ('). 


1.  Cf.  Bassibey,  De  la  Clandestinite,  n<^  53.70  ss.  Consult  also  the  Causa 
Parisien.  of  24  May  igii  (A.  A.  S.,  Ill,  p.  334  ss.),  in  which  is  quoted  a  decree 
of  13  May  1875  concerning  certain  persons  who  appear  to  have  two  domi- 
ciles, viz.,  a  business  domicile  and  a  family  domicile.  The  decree  declares 
that  in  such  a  case  there  is  only  one  real  domicile,  the  last  named,  in  which 
the  night  is  passed. 

2.  The  fact  of  a  ten  years'  residence  carries  with  it  a  presumption  of  this 
kind ;  the  taking  up  of  an  office  implies  that  one  is  seeking  a  fixed  abode,  and 
so  forth.  Cf.  the  Causa  Ravennaten.,  15  May  1911,  in  the  A.  B.  S. ,  III  p.  488. 

One  and  the  same  person  can  have  two  domiciles,  if  he  lives  by  turn  in, 
two  parishes  and  has  the  intention  of  continuing  to  do  so,  passing  about  half  of 
the  year  in  each. 

3.  On  the  subject  of  this  domicile  in  law,  see  the  Causa  Ravennaten,  of 


126  THB  FORMALITIES  OF  THE  CONSENT 

2.  The  month's  residence. 

or  the  parish      The  month's  residence  consists  in  a  stay  (*)  for  thirty  consecu- 

^^barishln     ^^^^  days  in  the  same  parish,  without  reference  to  the  intention 

which  the     of  the  engaged  parties.  There  is  no  reason  why  the}'  should  not 

bunfiving    be  away  tor  a  few  hours,  or  even   make  it  a  practice  to  absent 

for  a  month,  themselves  during  the  day,  provided  they  pass  the  night  there. 

There  must  be  the  full  thirty  days,  but  the  thirtieth  day,  once 

begun,  may  be  counted  as  complete,  and  so  on  the  thirtieth  day 

the  marriage  may  lawfully  take  place  before  the  parish  priest  of 

the  place  ('). 

This  month's   residence,  in  the  matter  of  the  celebration  of 
marriage,  has  taken  the  place  of  the  quasi-domicile  (')   heretoiore 


15  May  and  39  Dec.  1911,  in  the  A.  A.  S.,  Ill,  p,  483  ss.,  especially  p.  485-490 
and  495,  and  IV,  p.  337  ss.,  and  compare  with  the  Collat.  Brug.,  t.  XVI,  p.  704 
ss.;  see  further  the  Causa  Parisien,  37  Jan.  1913,  in  the  A.  A.  S.,  IV,  p. 
377  ss.,  and  the  dissertation  which  we  have  written  in  the  Coll.  Brug.,  t.  VIII, 
p.  348-357,  compared  with  t.  XII,  p.  157  s.  ;  we  have  there  treated  the  question 
point  by  point,  with  explanations  and  proofs,  and  have  given  in  detail  the  con- 
ditions required  for  the  renunciation  of  this  domicile.  Read  also  the  nume- 
rous authors  quoted  there  :  R.  th.fr.,  1903,  p.  734  ss. ;  Bassibey,  Cland.,  n°  75  ; 
Canon.  Cont.,  1902,  p.  483,  with  the  case  solved  before  the  S.  C.  C.  37  Dec.  1901  ; 
Ned.  Kath.  Stemmen,  1906,  p.  83 ;  Th.  Pr.  Quartalschr.,  (Lintz)  1901,  p.  139  s.  ; 
Pastor  Bonus,  1907,  p.  304  ss,  and  393  ss.  ;  Anal,  eccl.,  1907,  p.  338 ;  Fournbret, 
o.  c,  p.  191  ss. 

I.  It  seems  that  a  real  residence  is  necessary,a  dwelling  properly  so  called,  as 
distinct  from  a  sojourn  that  a  mere  tourist  or  vagus  might  make  in  a  place. 
This  is  clear  from  the  decree  of  the  C.  S.  O.,  dated  34  March  1867,  the  text 
of  which  is  given  in  the  Coll.  Brug.,  t.  IV,  p.  184. 

3.  For  the  month's  residence  it  is  not  necessary  to  distinguish,  as  in  the 
acquisition  of  a  domicile,  between  majors  and  minors,  between  those  who  are 
their  own  masters  and  those  who  are  dependent  on  others  ;  by  means  of  the 
above  mentioned  residence  all  can  of  themselves  become  the  parishioners  of  a 
particular  parish  priest.The  same  may  be  said  with  regard  to  the  quasi-domicile, 
as  far  as  that  is  still  recognised. 

3.  This  substitution  is  not  clearly  set  forth  in  the  Decree  Ne  Temert  itself,  as 
we  have  shown  at  length  in  our  Commentary,  and  as  several  distinguished 
commentators  have  recognised,  such  as  Besson,  N.  R.  Th.  1908,  p.  80  ss.  ; 
OjBTTi,  Jus  Planum,  n°  95,  and  also  the  Consultor  in  Voto  for  the  Decree  of 
28  March  i9o8,in  the  Anal.  Eccl.,igo8,  p. 134. But  the  doubt  that  existed  has  been 
removed  by  the  S.  C.  C.  in  its  decree  of  38  March,  ad  sm,  (in  the  Coll.  Brug.,  t. 
Xin,  p.  467  ss.).  To  this  decree  the  S,  C.  de  Sacr,  referred  anew,  lo  March 
1910,  sub  50. 


THB  FORMALITIES  OP  THE  CONSENT  I27 

required,  in  default  of  a  domicile,  in  order  to  qualify  one  as 
a  parishioner  for  the  purpose  of  marriage;  and  this  is  why  we  have 
defined  the  particular  parish  priest,  in  this  respect,  as  the  parish 
priest  of  the  parish  in  which  the  engaged  parties  have  a  domicile, 
or  a  month's  residence.  The  quasi-dotnicile  was  acquired,  and  is 
still  acquired,  as  far  as  in  other  matters  it  remains  in  force,  by 
actual  residence  in  a  parish  with  the  intention  of  remaining  there 
for  the  greater  part  of  the  year.  This  intention  was  presumed,  it 
is  true,  from  the  fact  that  the  residence  had  already  lasted  a  month, 
but  this  was  only  a  presumption  of  the  law  (juris  tantum),  and  by 
no  means  a  presumption  that  did  not  admit  of  proof  to  the  con- 
trary, (juris  ct  de  jure),  except  by  special  privilege,  such  as 
obtained  in  the  United  States  ot  America.  On  the  other  hand,  if 
this  intention  was  wanting,  an  actual  residence  of  six  months  did 
not  constitute  a  quasi-domicile  (').  -.^ 

Note.  1 .  The  place  in  which  it  is  necessary  to  have  a  domicile.  By  'place'  is 
or  a  month's  residence,  in  order  that  one  may  have  a  particular  stood  parish. 
parish  priest  or  Ordinary,  is  the  parish.  The  Bishop  is  not  consi- 
dered to  be  the  particular  Ordinar}^  of  the  engaged  parties,  unless 
they  have  been  domiciled,  or  have  resided  for  a  month  in  a  deter- 
minate parish  of  his  diocese  ;  it  does  not  suffice  if  they  travel  about 
from  place  to  place  within  the  limits  of  the  diocese.  The  reason  of 
this  is,  that  up  to  the  present,  in  canon  law,  no  account  was 
taken  of  the  domicile  or  quasi-domicile  that  was  not /(arocAta/  (*), 
just  as  the  Roman  law  considered  only  domicile  in  a  municipium  ; 
and  the  new  discipline  seems  to  have  left  this  provision  of  the  law 
unchanged  ('). 


I.  The  regime  of  the  quasi-domicile,  under  the  Tridentine  discipline,  is 
explained  at  length  in  the  Coll.  Brug.,  t.  V,  p.  306  ss.  ;  t.  IV,  p.  183  ss.  ;  t.  X,  p. 
603  ;  and  in  the  documents  and  authors  there  quoted.  See  also  the  Anal,  eccles., 
1903,  p.  153,  in  the  Causa  Paris.,  30  April  1902  ;  1903,  p.  387  ;  1905,  p.  193  and 
339  ss.  ;  the  Canon.  Cont.,  1903,  p.  503  ss.  the  Rev.  eccl.  de  Metz,  1905,  p.  553. 

3.  Cf.  the  Decree  of  the  C.  S.  O.  of  9  Nov.  1898,  quoted  above  in  no  64,  and 
given  in  the  Coll.  Brug.,  t.  IV,  p.  344  ss. ;  Fourneret,  o.  c,  p.  147-166. 

3.  Cf.  OjETTi,  o.  c,  no  96  ;  Vermeersch,  Ne  Temere,  no  59  ;  Ferreres,  Los 
Esponsahs,  n°  351  ',  Creagh,  o,  c,  p.  46  ;  Vogt,  o.  c,  p.  63;  Barrett,  o.  c, 
p.  35  ;  Choupin,  Ne  Temere,  n°  38  and  41.  —  De  Becker,  Ne  Temere,  p.  39  s. 
admits  the  same  for  the  domicile,  but  not  for  the  month's  residence,  agreeing 
therein  with  Van  der  Burght-Schaepman,  o.c,  p.38i  s.;  de  Arqubr,  o.c.n.  150 


128  THE  FORMALITIES  OF  THE  CONSENT 

With  regard  to  those  who  dwell  on  the  confines  of  two parishes,SQQ 
Fbye,  de  Imp.,  n.  229,  ad  5""  ;  R.  th.  fr.,  VI,  p.  612  ;  Deshayes. 
Questions  pratiques  sur  le  Manage,  p.  1 1-14  ;  Bassibey,  De  la  Cland., 
n°68 ;  Coll.Brug.,  t.  V,  p.  688  s.  with  the  passages  quoted.  Here 
it  is  sufficient  to  say  that  such  persons  belong  to  the  parish  on 
which  the  principal  door  of  their  house  opens,  unless  the  Bishop 
has  made  any  provision  to  the  contrary.  If  they  subsequently 
change  the  principal  door  in  such  a  manner  that  it  opens  on  to  the 
other  parish,  the  domicile  is  not  changed  thereby,  unless  the 
house  is  at  the  same  time  reconstructed  or  the  whole  arrangement 
of  it  altered. 

2.  The  parish  priest  of  the  parish  in  which  the  engaged  parties 
have  only  a  month's  residence  can  licitly  assist  at  their  marriage, 
as  well  as  the  parish  priest  of  the  parish  in  which  they  have  a  true 
domicile.  Nevertheless,  as  De  Becker  remarks  (Ne  Temere,  p.  40), 
this  latter  can  lawfully  officiate  even  if  his  parishioner  does  not  at 
the  time  reside  in  his  parish,  provided  the  marriage  takes  place  in 
his  territory,  while  the  former  is  only  competent  to  do  so  in  the 
case  of  parties  residing  in  his  parish  at  the  time  of  the  marriage. 
Vagi.  3.  For  vagi,  that  is  to  say,  for  those  who  have  neither  a  domi- 

cile nor  a  month's  residence  in  any  place  ('),  the  assistance  of  the 
parish  priest  is  licit,  (subject  to  what  we  shall  say  below  in  the 
second  proposition),  as  often  as  it  is  valid,  viz.,  whenever  they 
contract  marriage  before  the  priest  of  the  parish  in  which  they 
are  for  the  moment  residing.  For  all  that  concerns  the  celebration 
of  marriage,  the  parish  priest  of  their  actual  place  of  sojourn  occu- 


and  167,  Theol.  Mechl  o.c,  p.  316,  and  Cronin,  t.  c,  p.  183.  —  Standaert,  Coll. 
Gand.,  t.  II,  p.  191  s.,  and  Wouters,  o.  c,  p.  51,  are  content  with  the  domicile 
and  with  the  month's  residence  in  the  diocese  ;  the  Instructions  du  Vicarial  de 
Rome,  1.  c,  p.  6ii,  seems  to  adopt  this  opinion. 

I.  Certain  interpreters  of  the  law  are  wrong  in  still  reckoning  as  vagi,  those 
who  have  a  month's  residence  in  a  determinate  parish,  but  no  fixed  domicile  or 
quasi-domicile  in  any  place.  Since  the  month's  residence  has  been  substituted 
for  the  quasi-domicile  such  persons  are  no  more  vagi  than  were  those  who  pos- 
sessed a  quasi-domicile  under  the  Tridentine  discipline.  A  solution  in  this  sense 
was  given  to  a  doubt  laid  before  the  S.  C.  de  Sacr.,  la  March  1910,  ad  51".  On 
the  other  hand,  a  person  who  has  no  domicile,  but  fixes  his  residence  in  a  cer- 
tain place,  with  the  intention  of  remaining  there  for  the  greater  part  of  the 
year,  must  be  regarded  as  a  vagits  until  his  residence  has  lasted  for  a  month. 


74. 


THE  FORMALITIES  OF  THE   CONSENT  129 

pies  for  them  the  same  position  as  the  particular  parish  priest  of 
ordinary  parishioners. 

If  one  of  the  parties  only  is  a  vagus,  it  seems  more  in  conformity 
with  the  law  that  the  marriage  should  take  place  before  the 
parish  priest  of  the  other  party,though  this  is,  perhaps,  not  strictly 
requisite  ('). 

Observation.  From  all  that  goes  before  it  can  be  seen  what  change    Difference 
the  law  of  Pius  X  has  introduced  into  the  form  of  the  nuptial  con-  ^^f^^is^ 
tract  formerly  imposed  by  the  Council  of  Trent.  Under  the  Tri-  Hon  and  that 
dentine  discipline  which,  as  we  have  said,  serves  as  the  norm  for     of  Trent. 
all  marriages  contracted  before  Easter  1908,  the  very  validity  of 
the  contract  depended  on  the  presf^nce  of  the  particular  parish 
priest,  and  his  competence  was  not  limited  to   his  own  terri- 
tory,  but  extended   everywhere  in   respect  of  his  parishioners ; 
the  particular  parish  priest  was  the   parish  priest  of  the  domi- 
cile or   quasi-domicile.  At  the  present  time  the  presence  of  the 
particular  parish  priest  is  no  longer  required,  except  for  the  pur- 
pose of  rendering  the  marriage  licit,  and  the  month's  residence 
has  taken  the  place  of  the  quasi-domicile  ;  thus  an  end  is  happily 
put  to  many  perplexities. 

Second  Proposition.  B^/or^  fAe  Ordinary  or  the  parish  priest  (or 
their  delegate)  can  assist  at  a  marriage,  they  must  first  assure  them- 
selves that  the  contracting  parties  are  free  from  ajty  impediment,  and  espe- 
cially from  any  matrimonial  tie.  In  the  case  of  vagi,  except  in  a  case  of 
special  necessity,  the  parish  priest  must  first  obtain  permission  from  the 
Ordinary  or  from  the  priest  deputed  for  this  purpose. 

Explanation. 

"75. 

The  first  of  these  conditions  calls  to  mind  that  provision  of  the  com-  Before  assist- 

mon  law,  which  forbids  anyone  to  proceed  to  the  celebration  of  a  ingatatnar- 
marriage  before  he  is  assured  of  the  absence  of  any  impediment,  parish  priest 
and  especially  of  that  of  an  existing  marriage  (ligamen)  (*).  lumselfthat 

I.  It  is  evident  that  the  parish  priest  of  the  place  in  which  the  vagus  is  dwel- 
ling, who,  as  we  have  said,  is  reckoned  as  his  particular  parish  priest,  possesses 
only  imperfectly  the  qualifications  of  the  particular  parish  priest  required  by  the 
spirit  and  object  of  the  law  for  licit  assistance  at  the  marriage.  Accordingly, 
when  the  bride  is  a  vaga,  the  parish  priest  of  the  bridegroom  should  be  prefer- 
red, notwithstanding  the  general  rule  given  above  at  the  end  of  n"  71. 

a.  See  below,  n^s  330  and  332,  together  with  the  Instr.  of  the  S.  C,  de  Sacr., 

9 


I30  THE  FORMALITIES  OF  THE  CONSENT 

The  second  condition  is  a  reproduction  of  the  statute  of  the 
Council  of  Trent  (*),  prohibiting  parish  priests  from  assisting  at 
the  marriage  of  vagi  «  without  having  first  referred  the  matter  to  the 
Ordinary,  and  obtained  his  consent  »,  as  a  precaution  against 
polygamy.  The  new  discipline  excepts  the  case  of  necessity,  that 
is  to  say,  when  there  is  a  grave  reason  for  celebrating  the  mar- 
riage at  once,without  incurring  the  delay  consequent  on  recourse 
to  the  Ordinary.  The  Ordinary,  under  the  new  discipline,  is 
empowered,  not  to  say  advised,  to  delegate  certain  priests,  e.  g. 
the  deans,  to  decide  these  cases  and  give  the  requisite  permission, 
in  view  of  the  fact  that  priests  can  more  readily  have  recourse  to 
their  respective  deans. 

By  vagi  we  must  here  understand,  it  seems,  not  those  who  are 
such  merely  for  the  moment,  because  they  have  just  given  up  their 
domicile  (or  month's  residence),  but  have  the  intention  of  shortly 
acquiring  another ;  but  only  such  as  lead  a  wandering  life,  without 
any  fixed  abode,  and  make  no  continuous  stay  in  any  place  for  a 
month  at  least  (*). 

II.  Exceptions. 
76. 
Exuptionul      In   the  two  exceptional  cases   (the  danger  of  death,  and  the 

impossibility  of  obtaining  a  priest)  mentioned  above  in  the  first 

point,  the  formalities  that  suffice  for  the  validity  of  the  marriage, 

suffice  also  for  its  licit  celebration. 


cases. 


of  6  March  1911,  the  text  ot  which  we  give  at  the  end  of  this  work.  See  also  the 
S.  C.  C.  of  I  Feb,  1908,  where  to  dubium  11^  '.  «  An  a  decreto  Ne  Temerc  abolita 
sit  lex  vel  consuetude  in  nonnullis  dicecesibus  vigens,  vi  cujus  a  curia  episcopali 
peragenda  sunt  acta,  quibus  constet  de  statu  libero  contrahentium,  et  dein  venia 
fiat  parochis  assistendi  matrimoniis  »,  the  answer  is  given  :  *  Servetur  solitum  ». 
Cf.  Choupin.  o.  c,  p.  156  s. 

I.  Sess.  XXIV,  De  Refortnatione  Matrimonii,  cap.  VII. 

a.  Cf.  Coll.  Brug.,  t.  II,  p.  495  ;  De  Arquer,  o.  c,  n.  184;  Ferreres,  Los 
Bsponsales,  n.  354,  271,  and  499  ;  Kiefer,  o.  c,  p.  9  ;  Choupin,  o.  c,  n.  46  ; 
Barrett,  o.  c,  p.  39  ;  Creagh,  o.  c,  p,  48  ;  Pezzani,  o.  c.,p.  118.  —  W^outers, 
o.  c,  p.  54  s.,  is  of  a  contrary  opinion  ;  also  Devine,  o.  c,  p.  304  ;  Besson,  in 
N.  R.  Th.,  1911,  p.  271  s. ;  Akribas,  o.  c,  p.  75  s.;  Leitner,  Nc  Tenure,  p.  41  s. 


THE  FORMALITIES  OF  THE  CONSENT  13! 

Skction  II.  Limits  of  The  New  Law. 

77. 

I.  Principles.  Principles : 

First  Principle.  The  Decree  Ne  Temere  extends  to  all  countries. 

It  is  considered  as  promulgated  by  the  very  fact  of  its  transmis-  a)  the  decree 
sion  to  the  Ordinaries,  and  even  by  the  very  order  for  its  transmis-  ^^(^untriet: 
sion  :  consequently  without  waiting  for  the  moment  of  arrival  at 
its  destination,  and  without  troubling  to  ascertain  if,  by  an  over- 
sight, it  has  not  been  sent  to  one  or  the  other  Ordinary  (*). 

Second   Principle.    The  Decree  Ne  Temere  applies  to  all  baptized  b)  it  concerns 
persons,  except  a./  )ion-catholics,  b/  Catholics  of  the  Oriental  rite.  '^ofthel^tin 

By  non-catholics  are  here  (*)  understood  those  only  who  have  rite ; 
not  been  baptized  in  the  Catholic  Church,  and  have  never  been 
converts  to  it,  whether  they  be  at  present  heretics  or  schismatics, 
Latins  or  Orientals  {^).  Accordingly  Catholics  are  here  «  all  those 
who  have  been  baptized  in  the  Catholic  Church  or  have  been 
converted  to  it  whether  from  heresy  or  schism,  though  they  have 
subsequently  become  apostates  or  unbelievers  ». 

Hence,  in  accordance  with  the  circular  of  the  Bishops  of 
Hungary,  of  16  March  1909,  those  who  are  to  be  reckoned  as 
Catholics,  in  the  sense  of  the  Decree  Ne  Temere,  are   «  a/persons 


I.  His  Holiness  Pius  X  has  herein  derogated  from  his  own  Constitution  Pro- 
mulgandi,  by  which  he  had  recently  reformed  the  traditional  method  of  promul- 
gation of  the  decrees  and  laws  of  the  Holy  See.  Formerly  this  was  done  by 
affixing  to  the  doors  of  the  Greater  Basilicas  of  the  Eternal  City :  the  Constitu- 
tion of  Pius  X  has  replaced  this  affixing  by  the  insertion  and  publication  of  the 
decrees  in  the  official  commentary  of  the  acts  of  the  Apostolic  See. 

The  promulgation  of  the  chapter  Tametsi,  by  the  express  order  of  the  Council 
of  Trent,  was  also  made  in  a  way  that  derogated  from  the  traditional  method. 
The  Fathers  of  the  Council  ordained  that  publication  should  be  made  in  each 
parish  scparately.and  that  «  it  should  come  into  force  for  each  parish  one  month 
after  the  first  day  that  the  publication  of  it  had  been  made  there  ».  Cf.  Coll.  Brug., 
t.  XII,  p.  568  s. 

3.  VVe  say  here,  because  this  cannot  be  applied  indiscriminately  to  other  mat- 
ters, notably  to  the  determining  of  a  mixed  marriage  ;  for  that, it  seems, we  must 
still  apply,  saving  the  restriction  of  which  we  speak  at  the  end  of  n.  79,  what 
was  laid  down  by  the  C.  S.  O.,  6  April  1859.  (Coll.  Brug.,  t.  Ill,  p.  580).  See 
below  no  253. 
3.  Deer.  S.  C.  C,  a8  March  1908,  ad  a"". 


132  THE  FORMALITIES   OF  THE   CONSENT 

who  have  been  baptized  and  educated  in  the  Catholic  religion, 
and  have  never  been  separated  from  it ;  b/  persons  baptized  as 
Catholics  without  having  ever  practised  the  Catholic  religion  (*) ; 
c/  persons  baptized  as  Catholics,  but  who  have  afterwards  fallen 
into  heresy  or  schism  ;  d/  non-catholics,  baptized  as  such,  who, 
after  conversion,  have  again  fallen  away  »  (*). 

The  following  are  regarded  as  baptized  in  the  Catholic  Church : 
firstly,  infants,  who  at  the  wish  of  their  parents  or  guardians  are 
carried  to  the  baptismal  font  of  the  Catholic  Church,  or  who, 
being  born  of  Catholic  parents,  have  been  baptized  by  a  laic  in 
case  of  necessity  ;  secondly,  adults  (of  seven  years,  or  over), 
who  of  their  own  will  have  presented  themselves  for  baptism 
before  a  Catholic  minister,  or  in  case  of  necessity  before  any 
other  person  whatever  (').  Infants  baptized  as  non-catholics  and 
still  below  the  age  of  reason,  whom  their  convert  parents  cause 
to  be  brought  up  and  numbered  as  Catholics,may  also  be  reckoned 
as  converts  from  here^  or  schism  (*). 

All  Catholics  living  in  the  East  are  not  the  oriental  Catholics 
exempted  by  the  Decree,  but  only  those  who  belong  to  the  Oriental 
rite.  These  last  have  been  declared  exempt  by  the  S.  C.  C.  under 
date  of  I  Feb.  1908,  ad  i""  {^). 

1.  See,  however,  the  decree  of  the  C.  S.  O.,  of  31  March  1911  (A.  A.  S.,  Ill, 
p.  163  s.) ;  where  we  find  that  recourse  is  to  be  had  to  the  Holy  See  in  particu- 
lar cases,  whenever  there  is  question  of  a  marriage  to  be  contracted  by  one 
baptized  as  a  Catholic,  but  born  of  infidel  or  non-catholic  parents,  and  brought 
up  from  infancy  in  heresy  or  infidelity.  Cf.  N.  R.  th.,  1911,  p.  411  ss. 

2.  Cf.  Archiv.  /.  k.  Kirchenr.,  1909,  p.  716  ss. 

3.  Cf.  Vermeersch,  Ne  Tentere,  no  87  ;  Vanderburgt-Schaepman,  o.  c, 
nos  304  ss.;  Theol.  Prakt.  Quartalschr.,  1913,  p.  107  s. 

4.  Cf.  Van  den  Acker,  o.  c,  p.  94  s.  This  author,  p.  96,  denies  the  parity  of 
this  case  with  that  of  an  infant  baptized  as  a  Catholic  and  inscribed  by  its 
parents  in  a  non-catholic  sect ;  in  this  latter  case,  he  says,  the  child  should  not 
(save  recourse  to  the  Holy  See)  be  considered  as  a  non-catholic,  on  the  ground 
that  odiosa  sunt  restringenda. 

5.  Cf.  Coll.  Brug.,  t.  XIII.,  p.  398  ss.  and  also  the  note  on  p.  186,  where  we 
observe  that  this  exemption  is  in  conformity  with  the  general  line  of  conduct 
that  prevails  where  the  Orientals  are  concerned.  As  a  matter  of  fact  they  are  not 
bound  by  new  papal  Constitutions  except  «  a/  in  the  matter  of  dogmas  of  faith  ; 
b/  in  the  case  in  which  the  Pope  explicitly  mentions  them  and  issues  decrees  in 
their  regard ;  c/  where  Constitutions  bind  them  implicitly,  as,  for  instance,  in  the 
matter  of  appeals  to  a  future  Council  »,  that  is  to  say,  they  are  forbidden, 


THE  FORMALITIES  OF  THE  CONSENT  I33 

Third  Principle.  The  exemption  of  one  of  the  contracting  parties  is  c)  the  exemp- 
noi  shared  by  the  other.  shared. 

The  contrary  principle  was  in  force  under  the  Tridentine 
discipline.  As  a  general  rule  (')  the  exemption  of  one  of  the  parties 
sufficed  to  withdraw  the  marriage  from  the  law  of  clandestinity. 
This  privilege,  as  the  Consultor  for  the  decree  of  the  S.  C.  C,  of 
28  March  igo8,  observes  in  the  Anal.  eccL,  igoS,  p.  121  s.,  was 
not  a  logical  consequence  of  the  nature  of  the  marriage,  nor  of 
the  nature  of  the  law  annulling  marriages  celebrated  without  the 
required  form.  It  had  its  origin  solely  in  the  positive  law  ;  and  we 
must  admit  that  the  new  discipline  is  more  conformable  to  the 
nature  of  the  contract,  which  requires  the  competency  of  both 
parties,  as  well  as  to  the  nature  of  the  law,  which  determines  the 
form  under  which  the  marriage  must  take  place. 

The  abrogation  of  the  privilege  follows  from  art.  XI,  §  2  of  the 
Decree  Ne  Temere,  and  from  the  solution  of  doubt  i,  given  by  the 
S.  C.  C,  28  March  1908.  The  Decree  says  :  «  They  (the  above 
laws)  are  also  binding  on  the  aforesaid  Catholics,  if  they  con- 
tract ..  marriage  with  non-catholics,  whether  baptized  or 
unbaptized,  even  after  having  obtained  a  dispensation  from  the 
impediment  of  mixed  religion  or  of  disparity  of  worship  ».  Again, 
to  the  proposed  doubt :  «  Is  a  marriage  contracted  by  a  Catholic 
of  the  Latin  rite  with  a  Catholic  of  the  Eastern  rite,  without  the 
form  appointed  by  the  Decree  Ne  Temere,  valid  ?  »,  the  S.  C.  C, 
answered  in  the  negative. 


equally  with  the  Occidentals,  to  appeal  from  a  decision  of  the  Pope  to  a  future 
Council,  seeing  that  this  prohibition  rests  on  the  dogma  of  the  sovereignty  of  the 
Roman  Pontiff.  But  none  of  these  cases  is  verified  in  the  present  instance.  Cf. 
Collectan.,  no  1999  ;  Ojetti,  Jus  Pianum,  n°^  133  and  134.  In  this  latter  number 
the  author  observes  that  the  Orientals,  with  rare  exceptions,  are  not  even  subject 
to  the  Tridentine  discipline.  See  also  Vering,  o.  c,  p.  873 ;  Tlieol.  Prakt.  Quar- 
talschr.,  1911,  p.  365  ss.,  where  the  condition  of  the  Ruthenians  in  this  matter  is 
described.,  coll.  p.  905,  where  is  given  the  decree  of  the  S.  C.  de  P.  F.  pro  Neg. 
Ritus  Orient,,  5  May  1911,  in  virtue  of  which  the  decree  Ne  temere  is  extended 
to  the  Ruthenian  dioceses  of  the  Galacian  province,  but  not  to  the  others,  in 
particular  not  to  the  Ruthenians  of  Hungary. 

I.  Except  for  the  island  of  Malta.  There,  by  a  decree  of  the  S.  C.  for  Extraor- 
dinary Affairs,  of  12  Jan.  1899,  and  by  a  decree  of  the  C.  S.  O.  of  3  June  1893, 
the  present  law  on  this  point  was  already  in  force.  See  the  Author's  Commentarius 
at  the  foot  of  page  41. 


134  "THE  FORMALITIES   OF  THE   CONSENT 

From  these  principles  we  naturally  deduce  : 
II.  Applications  and  Rules. 

75. 
Applications     FiRST  RuLE.  Latin  Catholics  (in  the  sense  indicated),  who  marry 

***   *^'*    '    among  themselves,  are  subject   to  the    decree  Ne  Temere  throughout 

the  entire  world,  and  consequently  they  are  everywhere  hound  to  observe, 

for  the  validity  of  their  marriage,  the  formalities  described  above. 

Second  Rule.  Infidels,  non-catholics  (in  the  sense  indicated), 
Oriental  Catholics,  who  marry  among  themselves(*)  in  any  way  whatever, 
are  nowhere  (^)  subject  to  the  Decree. 

Third  Rule.  The  Latin  Catholic  who  marries  an  infidel,  or  a 
non-catholic,  or  an  Oriental  Catholic,  is  bound  by  the  prescriptions  of 
Pius  X,  even  if  he  (or  she)  has  previously  obtained  a  dispensation  from 
disparity  of  worship,  or  from  mixed  religion. 

This  third  rule  is  the  application  of  the  third  principle,  and  it  is 
strictly  binding,  even  if  a  dispensation  has  been  obtained  in  advance...; 
in  other  words,  the  Church,  in  giving  a  dispensation  from  mixed 
religion  or  disparity  of  worship,  is  not  considered  to  dispense 
thereby  from  the  impediment  of  clandestinity,  though,  as  a  gene- 
ral rule,  as  we  shall  point  out  below,  in  dispensing  from  disparity 
of  worship,  she  also  explicitly  dispenses  the  Catholic  party  from 
all  impediments  from  which  the  infidel  party  is  exempt. 

III.  Exceptions. 

75. 
Exception  in     Up  to  the  present  an  exception  to  this  discipline  has  been  made 

German  Em-  ^^  ^^^  instances  ;  the  one  in  favour  of  the  German  Empire  ('),  the 

pire  and  Hun-       

*  I.  Among  themselves,  that  is  to  say,  an  infidel  with  an  infidel,  or  with  a  non- 

catholic,  or  with  an  Oriental  Catholic,  and  vice  versa. 
3.  Their  exemption  is  universal,  geographically  speaking. 
3.  In  the  Decree  Ne  Temere,  in  accordance  with  the  text  of  arL  XI,  §  2,  quoted 
above,  there  is  inserted  a  derogatory  clause  «  Unless  the  Holy  See  have  dertermined 
otherwise  for  any  particular  place  or  country  *.  This  clause  has  been  understood 
dififerently  by  different  authors  (cf.  Comment.,  p.  42  ss.)  ;  but  the  S.  C.  C.  inter- 
preted it  from  the  first  in  a  restricted  sense,  and  applied  it  only  to  the  German 
Empire,  and,  indeed,  only  to  those  born  in  Germany  and  marrying  there.  The 
following  doubt  was  proposed  to  the  S.  C.  C. :  «  Does  art.  XI,  §  2...  include  the 
Constitution  Provida  of  Pope  Pius  X  alone,  or  does  it  likewise  include  the 
Benedictine  Constitution  and  other  indults  of  this  kmd  concerning  the  impedi- 
ment of  clandestinity  ?  ».  It  replied,  i  Feb.  1908,  ad  4™  :  «  It  includes  only 
the  Constitution  Provida,  and  no  other  decrees  whatever  :  after  consulting 
His  Holiness,  and  ad  mentem  ». 


THE  FORMALITIES  OF  THE  CONSENT  I35 

other  in  favour  of  the  Kingdom  of  Hungary  ('),  to  the  effect  that 
mixed  marriages  contracted  there  are  not  subject  to  the  Decree 
A'"^  Temere  (*). 

Observe,  1°  that  this  exception  does  not  apply  to  betrothment, 
but  to  marriages  only  ;  2°  that  according  to  the  most  probable  opi- 
nion, it  is  to  be  restricted  to  mixed  marriages  in  the  strict  sense 
only,  that  it  to  say,  to  marriages  between  Catholics  and  baptized 
non-catholics,  not  between  Catholics  and  infidels.  These  last  are 
not  included  in  the  Constitution  Provida  ('),  the  provisions  of 
which,  apart  from  explicit  restrictions,  are  preserved  and 
sanctioned  in  the  exception,  as  is  clear  from  the  answers  given. 
3°  Observe  that  the  non-catholic  party  is  to  be  understood  in  the 
sense  of  the  Decree  Ne  Temere,  and  not  in  the  sense  received 
under  the  Tridentine  discipline.  This  is  authoritatively  taught 
by  the  S.  C.  C.  in  its  decree  of  i  Feb.  1908,  ad  5"  (*),  and  with 


I.  The  privilege  of  exemption  was  extended  to  the  Kingdom  of  Hungary  by 
the  S.  C,  de  Sacr.,  37  Feb,  1909,  having  regard  to  the  peculiar  circumstanees 
which  are  set  forth  in  Archiv  f.  k.  KircJtcnr.,  1908,  p.  763  s.  See  the  text  of  the 
decree  in  the  Coll.  Brug.,  t.  XIV,  p.  561  s.,  as  well  as  p.  490,  where  is  given  the 
decree  of  the  S.  C.  C,  of  8  July  1908,  refusing  an  extension  of  the  same  privilege 
to  the  Russian  Empire  and  to  the  part  of  Poland  subject  to  Russia, 

Note  that,  according  to  the  express  reply  of  the  secretary  of  the  S.  C.  de 
Sacr.,  of  the  5  March  following,  «  under  the  name  of  the  Kingdom  of  Hungary 
are  comprised  not  only  Hungary  proper  together  with  Transsylvania,  but  also 
the  countries  annexed  thereto,  that  is  to  say  all  the  lands  appertaining  to  the 
Crown  of  Saint  Stephen,  consequently  Croatia,  Slavonia,  the  city  of  Fiume,  and 
so  all  places  at  present  subject  to  the  Apostolic  King  »  (Circular  letter  to  the 
Bishop  of  Hungary,  18  March  1909).  Cf.  Leitner,  Ne  Temere,  p.  88  s.  Observe 
also,  according  to  the  text  of  the  decree  of  27  Feb.  1909,  that  all  mixed  marriages 
contracted  up  to  that  time  in  the  Kingdom  of  Hungary,  after  the  publication  of 
the  Decree  Ne  Temere,  without  the  prescribed  form,  are  validated  in  radice. 

3. For  these  marriages  clandestinity  does  not  constitute  a  diriment  impediment, 
but  it  constitutes  an  impedient  impediment.  Cf.  Constit.  Provida,  in  Leitkbr, 
Konst.  Provida..  and  the  Collat.  Brug.,  t.  XI,  p.  285  ss. 

3,  See  the  text  of  the  Constitution  and  its  interpretation  1.  c. 

4.  To  the  doubt  proposed  :  c  Must  Catholics  in  the  German  Empire,  who  have 
gone  over  to  heresy  or  schism,  or  who,  after  being  converted  to  the  Catholic 
Faith,  have  subsequently  renounced  it,  even  in  their  youth  or  infancy,  observe 
the  conditions  prescribed  by  the  decree  Ne  Temere,  in  order  to  contract  valid 
marriage  with  a  Catholic  ?  »,  the  S.  C.  C.  gave  an  affirmative  answer. 

Cf.  PRiiMMER,  in  Theol.  P.  Quartalschr.,  1912,  p.  108  s.,  where, in  the  solution  of 
a  practical  case,  he  notes  the  different  application  of  theConstitution  Provirfa, 


136  THE  FORMALITIES  OF  THE  CONSENT 

reason,  since  it  is  important  to  give  to  the  word  non-catholic  the 
same  acceptation  here  that  it  has  in  the  Decree  Nc  Temere.  4°  The 
exception  must  be  interpreted  strictly.  Thus,  in  the  first  place 
it  holds  good  only  for  marriages  contracted  in  Germany  and  in 
Hungary  between  parties  who  are  both  natives  ofGemany,  or  both  7iaii- 
ves  of  Hungary  (*)  ;  in  the  second  place,  the  derogation  made  for 
Germany  must  be  taken  and  applied  independently  of  that  made 
for  the  Kingdom  of  Hungary,  and  vice  versa  (*). 

Moreover,  this  two-fold  derogation  is  regarded  as  a  temporary 
concesssion  and  as  a  provisional  indult  ('). 


before,  and  after  the  decree  of  i  Feb.  1908,  (wich  must  be  brought  into 
practice  from  Easter  following  thereupon)  in  particular  as  regards  the  mar- 
riage of  a  Catholic  with  a  non-catholic,  baptized  as  a  Catholic  but  before  the  age 
of  seven  brought  up  in  a  non-catholic  sect.  A  marriage  of  this  kind  under  the 
Provida  discipline  is  valid,  if  it  was  contracted  before  that  date,  since  the  afore- 
said decree  has  no  retrospective  force,  but  it  is  invalid  if  contracted  at  a  subse- 
quent date. 

1.  In  answer  to  the  following  doubt  :  «  Must  the  exception,  introduced  for 
Germany  by  the  Constitution  Provida,  be  considered  as  purely  local,  or  also  as 
personal  ?  »,  the  S.  C.  C,  28  March  1908,  ads'",  declared  :  «  The  exception  holds 
good  only  for  those  who,  being  natives  of  Germany,  contract  marriage  there  : 
after  consultation  with  His  Holiness  ».  The  decree  ofay  Feb.  1909  adds  that  this 
declaration  is  to  be  applied  in  the  case  of  Hungary  also.  Persons  born  in  Alsace 
and  Lorraine,  before  the  annexation  of  these  provinces  to  the  Empire  are  consi- 
dered as  being  born  in  Germany.  Cf.  Bockenhoff,  Nc  Temere,  1.  c,  p.  199. 

Moreover,  the  S.  C.  de  Sacr.,  15  June  1909,  ad  !>",  interpreted  the  answer  of 
the  S.C.C.,  given  38  March  1908, in  this  sense  :  «  the  parties  must  both  be  bom  in 
Germany,  or  both  in  the  kingdom  of  Hungary  ».  See  the  Coll.  Brug.,  t.  XIV,  p. 
489  ss., where  will  be  found  an  account  of  the  state  of  the  controversy  before  this 
authoritative  interpretation. 

2.  Decree  of  the  S.  C.  de  Sacr.,  18  June  1909,  ad  a""  et  3"",  1.  c.  Whence  it 
follows  that  engaged  parties  both  born  in  Germany,  cannot  validly  contract  a 
clandestine  mixed  marriage  in  Hungary,  and  vice  versa.  Moreover,  ifoneof  the 
contracting  parties  is  born  in  Germany  and  the  other  in  Hungary,  they  cannot 
contract  a  valid  mixed  clandestine  marriage  either  in  Germany  or  in  Hungary- 

3.  In  reality  the  intention  of  the  Holy  See  in  granting  the  above  mentioned 
derogation  in  favour  of  Germany,  by  the  decree  of  i  Feb.  1908,  (though  only 
divulged  later),  was  «  to  write  to  the  Bishops  of  Germany  and  request  them  to 
consider  well  the  grave  inconveniences  resulting  from  mixed  marriages  ;  and 
then  to  petition  the  Holy  See,  with  a  view  to  obtaining  at  an  opportune  time  the 
abrogation  of  the  Constitution  Provida  ».  In  like  manner,  in  the  decree  extend- 
ing the  privilege  to  Hungary,  the  concession  is  said  to  be  granted /or  the  present, 
and  the  Hungarian  Bishops  are  warned  that  it  is  their  duty  fittingly  to  dispose 


THE  FORMALITIES  OF  THE   CONSENT  I37 

80. 

Conclusion.    Apart  from  the  exception  granted  in  the  case  of  the  Conclusion. 

Empire  of  Germany  and  the  Kingdom  of  Hungar}'',  all  marriages 
contracted  between  persons  of  whom  one  at  least  is  a  Latin  Catholic,  and 
such  marriages  only,  are  subject  to  the  new  law  of  clandestiniiy . 

Note.  The  extent  of  the  law  of  clandestinity  under  the  Tridentine  legis-  Tlte  extent  of 
lation  is  given  at  length  in  the  Coll.  Brug.,  t.  XII,  p.  462  s.  and  pp.  568-  J^^J^^^^t?^ 
580.  VVe  will  content  ourselves  with  recapitulating  here  the  principal  inno-     different. 
vations  introduced  in  this  matter  by  the  new  legislation  : 

a)  Henceforth  there  are  no  longer  countries  that  are  not  subject  to  the  law. 
Formerly  there  were  several,  in  which  the  chapter  Tametsi  had  not  been 
promulgated,  such  as  England,  Denmark  and  Norway.  These  countries,  in 
which  clandestine  marriages  were  formerly  valid,  even  between  Catholics, 
are  for  the  future,  subject  to  the  same  formalities  as  the  rest,  both  for  the 
validity  of  the  contract  and  for  its  licitness. 

b)  The  persons  exempt,  i.  e.,  non-catholics  and  Oriental  Catholics,  are 
exempt  everywhere,  and  not  in  certain  countries  only.  In  Belgium,  where 
heretofore,  clandestine  marriages  between  persons  baptized  in  heresy  were 
invalid,  they  are  now  valid,  when  both  the  man  and  the  woman  are 
baptized  heretics. 

c)  Heretofore,  as  we  have  said,  except  in  the  island  of  Malta,  the  principle 
of  communication  of  exemption  was  in  force,  so  that  the  exemption  of  one 
of  the  contracting  parties  sufficed  to  withdraw  the  other  from  the  law  of 
clandestinity.  Thus  marriages  between  Catholic  and  infidel,  or  between 
Catholic  and  non-catholic,  were  of  themselves  valid,  as  often  as  the  law 
of  the  Council,  as  being  personal  and  local,  exempted  the  non-catholic 
party.  On  the  other  hand,  under  the  new  discipline,  this  principle  is 
abrogated,  and  henceforth  the  party  subject  to  the  law  communicates  his 
obligation  to  the  other,  so  that,  except  in  Germany  and  Hungary,  marriages 
of  this  kind  are  subject  to  the  law  of  clandestinity. 

With  regard  to  the  law  of  the  Council  of  Trent  as  being  local  and 
personal,  the  principles  that  determine  its  import  are  clearly  set  forth  and 
practically  applied  in  the  Causa  S.  Christophori  de  Habana,  decided  by 
the  S.  Rota,  15  July  1910.  Consult  Acta  Ap.  Sedis,  1910,  t.  II, 
p.  874  ss.  (<). 


the  faithfulto  receive,  later  with  filial  obedience  and  docility,  the  decisions  that 
the  Apostolic  See  may  hereafter  consider  opportune  for  the  purpose  of 
introducing  unity  in  matrimonial  legislation  >.  Canon.  Contemp.,  1909,  p.  581  s. 
I.  In  this  same  Causa  was  also  discussed  the  impossibility  of  observing  the  law 
of  the  Council  of  Trent.  The  S.  Tribunal  examined  the  question  to  ascertain 
what  kind  of  impossibility  sufficed  to  constitute  a  ground  of  excuse,  and  to  what 
extent. 


138  THE  FORMALITIES  OF   THE  CONSENT 

g2,  Scholion  I.  Sanctions. 

Sanctions        Article  X  of  the  Decree  Ne  Temere  provides  by  way  of  sanction, 
ercssors     '     ^°  *^^*  parish  priests  who  violate  the  prescriptions  of  the  decree  as  set 
forth  above,  shall  be  punished  by  their  Ordinary  in  proportion  to  their 
fault;  i.  e.   more  severely  for  the  transgression  of  a  condition  affecting 
validity,  than  for  one  that  affects  merely  the  licitness  of  the  marriage. 

2°  Moreover,  if  they  have  assisted  at  a  marriage  contrary  to  the  prescrip- 
tions of  §  2  and  3,  art.  V,  that  is  tho  say,  if,  without  the  permission  of  the 
particular  parish  priest,  and  otherwise  than  in  a  case  of  grave  necessity, 
they  have  joined  in  marriage  those  who  were  not  their  own  parishioners, 
who,  in  other  words,  had  neither  a  domicile  nor  a  month's  residence  in 
their  parish,  they  must  give  up  to  the  particular  parish  priest  of  the 
contracting  parties  (')  the  stole  fees  received  on  that  occasion,  viz,  the  fees 
due  to  the  parish  priest  by  right  of  stole,  but  not  the  offering  received  as  a 
stipend  for  the  celebration  of  mass  (*). 

Under  the  Tridentine  discipline  it  was  ordained  a/  «  that  the  parish 
priest  or  any  other  priest  who  should  assist  at  a  marriage  without  the  requi- 
red number  of  witnesses,  and  the  witnesses  who  should  assist  thereat 
without  the  parish  priest  or  other  priest,  as  well  as  the  contracting  parties 
themselves,  should  be  severely  punished,  at  the  will  of  the  Ordinary  > . 

b)  That  «  if  a  parish  priest,  or  any  other  priest,  whether  regular  or 
secular,  even  when  claiming  privilege  or  immemorial  custom,  should  dare 
to  effect  the  union  or  bless  the  marriage  of  parties  belonging  to  another 
parish,  without  the  permission  of  their  particular  parish  priest,  he 
should  be  ipso  facto  suspended,  and  should  so  remain  till  such  time  as  he 
should  be  absolved  by  the  Ordinary  of  the  parish  priest  to  whom  it  apper- 
tained to  assist  at  the  marriage  and  bless  it  >  ('). 

1.  In  the  case  in  which  the  parties  have  a  domicile  on  the  one  side  and  a 
month's  residence  on  the  other,  and  consequently  two  particular  parish  priests, 
the  decree  does  not  determine  to  which  of  the  two  pastors  restitution  is  to  be 
made.  The  determining  of  this  would  be  a  suitable  matter  for  the  diocesan 
decrees;  but  pending  a  settlement  of  the  point,  it  seems  equitable  to  divide 
such  fees  equally  between  the  two  claimants.  Schaub,  o.  c,  p.  16  (compare 
with  p. 14),  quotes  the  diocesan  decrees  of  Germany  regulating  this  matter:  it  is 
said  that  restitution  should  be  made  to  the  parish  priest  of  the  place  in  which 
the  bride  has  her  domicile, 

2.  The  text  of  art.  X  does  not  extend  this  provision  to  parish  priests  of  bride- 
grooms who  unduly  assist  in  the  place  of  parish  priests  of  brides,  but  the  Bishop 
could  do  so.  He  would  have  just  grounds  for  dealing  in  like  manner  with  those 
who,  without  being  the  particular  parish  priests  of  the  contracting  parties,  and 
without  preliminary  permission,  bless  marriages  in  case  of  urgent  necessity. 
The  sanction  of  the  Decree  does  not  provide  for  this  case. 

3.  See  the  interpretation  in  the  Coll.  Brug.,  t.  VI,  p.  368  ss. 


THE  FORMALITIES  OF  THE  CONSENT  I39 

These  measures  are  regarded  as  abrogated  by  the  new  Decree  (*).  This  in 
fact  professes  from  the  beginning  to  introduce  a  new  and  complete  law  «  for 
regulating  the  discipline  of  betrothment  and  marriage,  and  for  rendering 
their  celebration  easy,  certain  and  regular  » .  It  is  manifest  that  the  sanction 
of  the  law  of  clandestinity  is  a  part  of  this  whole,  and  consequently  it  is  now 
necessary  to  take  into  account  only  the  penal  provisions  contained  in  the 
decree  itself. 

Scholion  II.  Civil  formalities. 

83. 

According  to  the  Belgian  (^)  law  marriage  is  a  solemn  contract,  that  is  to  Provisions  of 
say,  a  contract  that  must  be  made  in  the  forms  required  by  law  ;  certain  ^^  Belgium. 
formalities  are  prescribed  for  its  very  existence,  others  for  its  validity.  These 
provisions  are  the  following  : 

1.  According  to  art.  8  of  the  law  of  26  Dec.  1891  :  «  Le  mariage  sera 
celebre  publiquement  devant  I'officier  de  I'etat  civil  (')  de  la  commune  (*), 
et  dans  la  commune  oil  I'un  des  epoux  aura  son  domicile  ou  sa  residence  a 
la  date  de  la  publication...  et,  en  cas  de  dispense  de  publication,  a  la  date 
de  la  celebration  »  (art.  165  du  Code  civil). 

2.  According  to  art.  75  :  «  Le  jour  designe  par  les  parties,  apres  les  d^lais 
de  publications,  I'officier  de  I'dtat  civil,  dans  la  maison  commune,  en 
presence  de  deux  tdmoins  (*),  parents  ou  non  parents...  recevra  de  chaque 


1.  This  is  the  opinion  of  Gennari,  o.  c,  p.  53  ;  of  De  Becker,  Ne  Temere, 
p.  44 ;  of  Vermeersch,  Nc  Tetnere,  n.  85  ;  of  Choupin,  Nc  Tcmere,  p.  76. 
Haring,  o.  c,  p.  24,  note  4,  is  undecided  ;  Boudinhon,  o.  c,  p.  93,  was  at  first 
of  a  contrary  opinion,  but  has  adopted  the  above  view  in  the  Canon.  Cont.,  igo8, 

P-  354  s. 

2.  For  the  law  existing  in  England,  Germany  etc.,  see  at  the  end  of  this  work. 

3.  The  civil  officer  has  jurisdiction  only  in  the  territory  of  the  commune  of 
which  he  is  the  civil  officer  ;  outside  of  this  territory  he  is  not  competent  to 
proceed  to  the  celebration  of  a  marriage,  even  when  he  is  the  civil  officer  of 
both  the  engaged  parties. 

4.  The  civil  officer  assisting  at  the  marriage  must  not  only  be  the  civil  officer 
of  the  commune  in  which  the  marriage  takes  place  ;  he  must  also  be  the  particu- 
lar civil  officer  of  one  of  the  parties,  that  is  to  say,  it  is  necessary  that  one  of 
the  parties  should  have  a  domicile  or  a  six  months'  residence  in  the  commune. 
Cf.  Planiol,  o.  c,  I,  n.  852  s.,  who  observes  that  in  France,  in  virtue  of  the  law 
of  21  June  1907,  a  month's  residence  is  sufficient. 

5.  Law  of  7  Jan.  1908,  which  reduced  by  one  half  the  number  of  witnesses 
required.  On  the  same  day  was  adopted  a  law  modifying  the  provisions  of  art.  37, 
and  permitting  women  to  act  as  witnesses  for  the  future.  This  is  the  actual  text  of 
art.  37  :  «  Les  temoins  produits,  aux  actcs  de  I'etat  civil  devront  ^trc  ages  de 
21  ans  au  moins,  parents  ou  autres,  et  ils  seront  choisis  par  les  personnes  int^res- 
sees.  Le  mari  et  la  femme  ne  pourront  etre  temoius  dans  le  meme  actc  >.  Cf. 


140  THE    FORMALITIES  OF  THE  CONSENT 

partie,  I'une  apres  I'autre,  la  declaration  qu'elles  veulent  se  prendre  pour 
mari  et  femme  :  il  prononcera,  au  nom  de  la  loi,  qu'elles  sont  unies  par  le 
mariage  (')  et  il  en  dressera  acte  sur-Ie-champ  >. 

There  are  in  the  legal  provisions  concerning  the  celebration  of  marriage 
three  distinct  elements  :  that  which  requires  the  presence  of  a  civil  officer ; 
that  which  demands  the  presence  of  the  competent  officer  ;  and  that  which 
requires  the  publicity  of  the  marriage.  The  presence  of  a  civil  officer  is 
required  under  pain  of  the  act  being  held  as  non-existent ;  the  absence  of  the 
competent  officer  and  the  want  of  publicity  entail  the  nullity  of  the  marriage. 
See  n°  243. 

The  want  of  publicity  properly  constitutes,  before  the  Belgian  civil  law, 
the  impediment  of  clandestinity.  For  the  better  understanding  of  its  scope, 
it  is  important  to  observe  in  the  first  place  that  this  publicity,  in  the  legal 
sense,  comprises  various  elements :  the  antenuptial  publications  and  the 
circumstances  of  the  marriage  itself,  such  as  the  publicity  of  the  place  in 
which  the  contract  is  made  (maison  communale) , the  opening  of  the  doors, 
the  presence  of  the  witnesses,  the  registration  and  so  forth.  Observe  in  the 
second  place  that  a  marriage  is  not  invariably  annulled  on  the  ground  of 
clandestinity  when  all  the  conditions  of  publicity  have  not  been  combined, 
even  at  the  moment  of  its  celebration.  The  law  allows  the  judge  a  certain 
latitude  and  power  to  decide  in  each  case,  according  to  the  circumstances, 
whether  the  contract  has  had  a  sufficient  publicity  or  not.  In  particular  the 
judge  will  annul  the  marriage  if  the  want  of  publicity  has  been  intentional, 
or,  again,  if  the  identity  of  the  contracting  parties  has  been  concealed.  In 
this  connection  a  striking  decision  of  the  Court  of  Appeal  of  Ghent,  of  the 
17  Nov.i9iofP«stcy.,i9ii,II,p.io  s.)  may  be  consulted,  and  compared  with 
the  decision  of  the  tribunal  of  the  same  town  on  the  same  question,  7  July 
1909  (Pasicr.,  1910,  III,  p.  64  s.).  See  also  Planiol,  o.  c,  I,  n^*  1018  s.  ; 
Van  Hemel,  o.  c,  p.  24  s.  (2). 


Coll.  Brug.,  t.  XIII,  p,  386  ss.  The  same  provision  is  in  force  in  France  since 
1897,  but  four  witnesses  are  still  required  there. 

I.  Planiol,  o.c,  I,  n.  86a,  remarks  that  the  civil  officer  does  not  take  the  part 
of  a  simple  witness  to  the  consent  given  :  <  c'est  lui  qui  les  (epoux)  declare  unis 
devant  la  loi  ».  Cf.  Balog,  o.  c,  p.  77  s. ;  in  the  same  place  it  is  noted  that  in  the 
new  German  Code  the  duty  of  the  civil  officer  is  reduced  to  that  of  a  mere 
qualified  witness,  and  that  his  declaration  has  no  legal  effect,  but  is  simply 
ceremonial.  Cf,  also  Sehling,  in  the  Neue  kirchl.  Zeitschr.,  1908,  p.  452. 

3.  For  the  provisions  of  the  civil  law  in  other  legislations :  see  Lehr,  o,  c. 

With  regard  to  Belgians  who  marry  abroad  and  foreigners  who  marr)-  in  Bel- 
gmm :  according  to  art.i7o  of  the  civil  code  (Law  of  oo  May  1863)  and  the  Hague 
Convention  of  13  June  1903  (sanctioned  by  the  Belgian  law  01 37  June  1904),  is  ap- 
plied.for  the  formalities  of  the  contract, the  principle  :  locus  regit  actum  :  that  is  to 


THE  FORMALITIES  OF  THE  CONSENT  I4I 

Scholion  III.  The  ancient  law. 

1.  Among  the  Hebrews  to  the  Schidduchin  or  betrothment  there  sue-  The  ancient 
ceeded  the  Kidduchin  or  nuptials,  which  were  accompanied  with  diverse  "^"^'**^  ^*^' 
symbolical  ceremonies  and  festivities  ;  sexual  intercourse  does  not  appear 

to  have  been  part  of  the  essence  of  the  contract.  See  above,  n°  60  ;  the 
Realencykl.,  t.  V,  p.  741-743  ;  Muscettula,  o.  c,  p.  229-239. 

2.  In  the  Roman  law  there  were  two  kmds  oijustae  nuptiae  («).  Marris^e  The  ancient 
cum  manu  (Manusehe),  with  delivery  of  the  bride  into  the  hands  of  the 


Roman  law. 


say.that  csera  recormu  partout  (in  all  countries  accepting  the  Convention)  comme 
valable,  quant  k  la  forme,  le  manage  celdbre  selon  la  loi  du  pays  oii  il  a  eu  lieu  •». 
Cf.  BouscHOLTB,  o.  c,  p.  10  s.  Observe  a/  that  the  marriage  may  be  celebrated 
abroad  before  the  diplomatic  or  consular  agent  of  the  country  to  which  the 
contracting  parties  belong,  and  according  to  the  formalities  required  by  the  law 
of  their  native  country'.  See  Orescu,  o.  c,  pp.  369-383 ;  ^rcAJu. /.  ^.  Kircltenr., 
1906,  pp.  465-485.  Observe  b/  that  according  to  the  new  text  of  art.  170  of  the 
civil  code,  introduced  by  the  law  of  30  May  1883,  the  validity  of  the  marriage 
does  not  certainly  depend  on  the  antenuptial  publications  (the  original  text  of 
art.  170  seemed  to  say  the  contrary);  moreover,  that  for  validity  there  is  no  need 
of  publicity,  such  as  we  have  just  seen  is  required  for  marriages  celebrated  in 
Belgium  ;  for,  supposing  the  observation  of  the  formalities  of  the  place  in  which 
the  marriage  is  celebrated,  there  is  required  for  validity  nothing  more  than  the 
observance  of  the  provisions,  under  pain  of  nullity,  inserted  in  the  preceding 
chapter  of  the  Code,  among  which  provisions  there  occurs  no  prescription  as  to 
the  publicity  of  marriage  (art.  165  and  lyi).  Cf.  in  this  sense  the  decision  of  the 
Court  of  Brussels,  30  nov.  1907,  in  Pasicrisie,  1908,  II,  p.  44  ss.  with  note  ;  Revue 
de  Droit  Beige,  in  the  Supplement  to  Pasicrisie,,  1910,  p. 419  ss.  On  the  other  hand 
there  is  the  decision  of  the  Court  of  Ghent,  17  Nov.  1910  (Pasicrisie,  1911,  II,  p. 
10  ss  ),  insisting  that  the  provision  of  art.i9i,  concerning  the  publicity  of  marriage, 
is  a  general  provision,  and  that  it  accordingly  affects  marriages  taking  place  not 
only  in  Belgium,  but  elsewhere  also. 

I.  Besides  the  justae  nuptiae,  the  Roman  law  recognised  three  kinds  of  inferior 
marriage  :  matrimonium  juris  gentium  or  injustum,  for  foreigners  ;  concubinage 
or  marriage  between  a  freeman  and  his  freedwoman  ;  and  coliabitation  or 
contubernium,  i.  e.  marriage  between  slaves,  or  between  freemen  and  slaves. 
Concubinage  in  particular  was,  at  least  under  the  empire,  legally  recognised,  and 
constituted  a  marriage  of  an  inferior  class,  in  which  the  woman  had  not  the 
title  of  wife  but  of  concubine,  and  did  not  share  her  husband's  rank,  almost  as  in 
morganatic  marriages.  Cf.  Darenberg  et  Saglio,  o.  c,  V"  Concubinatus,  P, 
p.  1436  ;  Vantroys,  o.  c,  pp.  33-37  )  Peytel,  o,  c,  p.  43  ss.,  and  also  p.  47  and 
53-54,  where  he  observes  that  the  word  concubine  was  formerly  part  of  the 
ecclesiastical  vocabulary,  and  denoted  a  lawful  wife,  but  one  of  an  inferior 
condition.  Cf.  Chardon,  o.  c,  p.  379  ss. 


142  THE  FORMALITIES  OF  THE  CONSENT 

husband  ;  and  marriage  sine  manu,  in  which  the  wife  preserved  her  rights 
or  remained  in  the  power  of  her  father  (<). 

In  this  latter  case  the  law  specified  no  particular  formalities  for  the  giving 
of  the  consent(*);  in  the  former  there  was  a  distinction  between  marriage  by 
confarr cation,  by  coemption,  and  by  use.  Only  the  first  of  these  was  subject 
to  legal  formalities,  while  for  marriage  by  coemption  (^)  and  by  use  (*) 
private  consent  was  sufficient.  Cf.  Darenberg  et  Saglio,  o.c,  V°  Manus. 
The  legal  formalities  of  marriage  by  confarreation  (reserved  to  the  patri- 
cian families)  consisted  in  this,  that  the  marriage  was  contracted  *  before 
the  pontifex  maximus  and  the  flamen  dialis,  in  the  presence  of  ten  witness- 
es ;  before  its  celebration  the  auspices  were  consulted,  and  a  sacrifice  was 
offered  to  the  gods  »  (*). 

These  were  the  requirements  of  the  Roman  law.  In  course  of  time 
various  formalities  were,  as  a  matter  of  fact,  introduced  by  custom,  and 
generally  observed,  in  addition  to  the  requirements  of  the  law  and  the 
legal  sanction,  even  in  the  case  of  marriages  sine  manu  (*).  Most  of  these 
were  borrowed  from  the  legal  prescriptions  for  marriage  by  confarreation, 
but  with  the  omission  of  the  presence  of  the  flamen  and  pontifex  (').  Cf. 
PicHON,  Hommeset  chosesde  I'AnciemteRome,  Paris,  1911,  p.  21  ss. 


I.  Cf.  P.  WiLLEMs,  Droit  Romain,  p.  60  s, ;  Desforges,  o.  c,  p.  27-37  ;  he 
shows  how  and  for  what  cause  the  primitive  form  of  marriage  {Manusehe)  yielded 
to  the  marriage  sine  manu,  which  from  the  third  century  was,  so  to  speak,  the 
only  one  in  force.  Cf.  Darenberg  et  Saglio,  o.  c,  V"  Manus,  III*,  p.  1586  s. 

a.  The  deductio  uxoris  in  domum  mariti  was  not  an  essential  formality  in  the 
celebration  of  marriage,  but  the  giving  of  consent  was,  as  we  have  shown  above. 
See  no  59  and  the  passages  quoted. 

3.  It  was  so  called  because  it  comprised,  among  other  ceremonies,  a  symboli- 
cal sale  before  the  judge  and  five  witnesses.  This  ceremony  was  not  a  part  of 
the  contract  itself,  but  symbolized  the  transmission  of  authority  from  the  hands 
of  the  father  of  the  family  to  those  of  the  husband.  See  above  no  53. 

4.  The  marriage  by  use  was  no  other  than  the  marriage  sine  manu  passing 
spontaneously  to  the  state  of  marriage  in  manu,m  virtue  of  cohabitation  prolong- 
ed for  a  year  and  uninterrupted  by  an  absence  of  three  nights. 

5.Cf.  Glasson,  o.  c,  p.  161,  who  adds  :  «  Marriage  thus  contracted  was  called 
confarreatio,  because  in  the  celebration  of  it,the  husband  and  wife  were  required 
to  break  and  eat  together  a  cake  made  of  meal  (panis  farreus)  ». 

6.  These  ceremonies  were  omitted  in  the  marriages  of  widows.  Cf.  Daren- 
berg ET  Saglio,  o.  c,  Vo  Malrimonium,  IIP,  p.  1654  s. 

7.  Darenberg  et  Saglio,  o.  c,  Vo  Matrimonium,  IIP,  p.  1654  ss.  Glasson, 
o.  c,  p.  168,  gives  a  description  of  it.  It  is  interesting  to  note  Ihat  the  bride  made 
modifications  in  her  dress  previously  to  the  marriage,  c  Some  time  before  the 
marriage,  the  bride  laid  aside  the  dress  worn  by  girls  (toga  praetexta)  and  offered 
it  together  with  her  toys  to  the  gods,  more  especially  to  the  lares  of  her  father's 


THE  FORMALITIES  OF  THE  CONSENT  I43 

3.  In  the  ancient  German  law  we  meet  with  but  few  legal  prescriptions  The  ancient 
relating  to  the  celebration  of  marriage,  but  various  solemnities  were  in  use  ^^^^'^^  ^*^- 
in  different  parts.  We  will  confine  ourselves  to  saying,  with  Friedberg  ('), 

that  to  the  betrothment  succeeded  the  nuptials,  contracted  publicly  in  the 
presence  ofthe  parents  and  relations,  followed  by  rejoicings  and  festivities, 
and  ending  with  the  surrender  of  the  bride  by  her  father  or  guardian  into 
the  hands  of  her  husband. 

Often  also  the  ministrations  of  a  Fiirsprecher  or  bridesman  were  em- 
ployed, whose  business  it  was  to  regulate  the  wedding  and  everything 
connected  with  it  («). 

4.  For  the  ancient  ecclesiastical  formalities,  see  above,  n°  63  (with  note) 
and  also  below,  n°  122. 

Scholion  IV.  Proof  of  marriage . 

1 .  Before  the  forum  ofthe  Church.  Manner  of 

Proof  of  marriage  may  be  established  in  anyway  whatever   :  but  the  establishing 
oy^twary  method,  for  marriages  contracted  before  the  Church,  is  by  the  ^^^^^^^  ^^  ^^ 
entry  in  the  register  (see  below  n°  338),  or  by  the  evidence  of  the  parish  forum  of  the 
priest  or  of  the  witnesses.  As  regards  marriages  celebrated  validly,  in  the 
past,  without  the  form  prescribed  by  the  Council  of  Trent,  or  at  the  present 
time,  without  that  established  by  Pius  X,  the  evidence  of  the  parties  them- 
selves may,  under  certain  conditions,  be  admitted,  as  is  the  case  also  for 
marriages  celebrated  in  due  form,   the  proof  of  which  by  means  of  the 


house.  She  was  clothed  with  a  tunica  recta,  round  her  waist  she  wore  a  woollen 
girdle  (cingulum),  and  on  her  head  a  red  veil  (flammeum)  which  took  the  place 
of  the  fillet  worn  by  girls.  Her  hair  was  dressed  in  a  special  manner,  held  by 
a  symbolical  pin  called  hasta  ceiibaris,  and  adorned  with  a  wreath  of  flowers. 
For  the  dcductio  in  domum,  the  bride  was  taken  with  a  show  of  force  from  her 
mother's  arms,  and  conducted  to  her  husband's  home,escorted  by  a  great  array 
of  musicians,  singers,  torch-bearers  and  guests.  On  arriving  there,  the  newly 
wedded  wife  anointed  the  door  of  her  new  home  with  oil  and  grease,  then  she 
crossed  the  threshold  and  was  brought  into  the  atrium,  where  her  husband 
offered  her  water  and  fire,  to  show  theat  she  was  to  take  part  in  his  life  and  in 
his  family  worship  ». 

1.  O.  c.,  p.  24. 

2.  SoHM,  Das  Recht,  p.  65  s.,  notes  different  symbolical  usages  formerly 
prevalent  among  the  Germans.  Thus  the  bridegroom,  as  a  sign  of  power  and 
authority,  placed  his  foot  on  that  of  the  bride  ;  from  this  there  came  later  the 
custom  of  giving  the  shoe  (Pantoffelj.  So  again  the  tendering  of  the  hat  and 
mantle,  Hut  und  Mantel  :  the  hat  as  a  token  ofthe  precedence  ofthe  husband, 
the  mantle  as  a  sign  ofthe  protection  that  he  owes  to  his  wife.  See  also  Rochb, 
0.  c,  p.  77  and  p.  74. 


144  THB  FORMALITIES  OF  THE   CONSENT 

witnesses  it  is  impossible  or  very  difficult  to  obtain,  as  for  example,  when 
the  marriage  took  place  abroad.  In  such  cases  :  a/  if  one  of  the  parties 
denies,  and  the  other  affirms,  it  is  for  the  latter  to  prove  his  statement  (') ; 
b/  if  they  both  deny  on  oath,  they  cannot  be  considered  as  married  ;  c/  if 
both  affirm  on  oath  that  they  are  married,  their  assertion  must,  as  a  rule, 
be  accepted,  unless  both  agree  in  affirming  that  they  were  secretly  mar- 
ried, when  another  and  a  public  marriage,  involving  one  of  the  parties, 
has  subsequently  taken  place  :  in  that  case  preference  must  be  given  to  the 
public  marriage,  as  long  as  no  legal  evidence  is  produced  in  support  of  the 
secret  marriage  or  against  the  validity  of  the  public  marriage  (*). 

Possession  of  state  may  also  be  invoked  as  a  proof ;  just  as  sexual  inter- 
course following  on  betrothment  affords  a  presumption  of  marriage,  a  pre- 
sumption that  was  formerly  j«ns  et  dejure  (admitting  no  proof  to  the  con- 
trary). 

2.  Before  the  civil  forum. 
in  the  civil       Article  194  of  tha  Code  Napoleon  ordains  in  general :  «  Nul  ne  pent 
forum.       reclamer  le  titre  d'epoux  et  les  effets  civils  du  mariage,  s'il  ue  presente  un 
acte  de  celebration  inscrit  sur  le  registre  de  I'etat  civil».  This  is,  as  a  gener- 
al rule,  the  only  proof  of  marriage  admitted  to  secure  for  a  marriage    its 
civil  ejects  (3). 

Exceptions,  l.  When  there  is  <  possession  of  state  »,  that  is  to  say,  the 
position  of  a  man  and  woman  living  as  husband  and  wife,  to  the  public 
knowledge,  and  reputed  as  married  : 

a/  If  «  I'acte  de  celebration  du  mariage  devant  I'officier  de  I'^tat  civil  est 


1.  Ch.  28,  X,  IV,  I.  Ch.  I,  X.  IV,  3,  however,  seems  to  be  in  disagreement 
with  the  former  ;  see  the  explanation  proposed  by  Wernz,  o.  c,  IV.,  no  187, 
and  Gasparri,  o.  c,  II,  no  878. 

2.  This  mode  of  action,  especially  as  concerns  the  hypothesis  given  under 
c/,  has  lately  been  approved  by  the  S.  C.  de  Sacr.  in  its  decree  Vcnctiarum, 
dated  6  March  1911,  relating  to  marriages  contracted  in  America,  €  the  written 
attestation  or  any  other  legal  proof  of  which  it  is  impossible  or  very  difficult  to 
obtain  without  long  research,  at  a  time  when  circumstances  do  not  admit  of 
delay  »  ;  the  S.  C.  replies  :  €  If  the  legal  proof  of  the  marriage,  whether  in  writ- 
ing, or  through  witnesses,  is  impossible,  in  spite  of  the  efforts  made,  let  the 
parties  be  required  to  confirm  their  statements  on  oath,  and  so  let  them  be 
regarded  as  lawfully  married,  and  their  children  as  legitimate.  Nevertheless, 
those  cases  must  be  excepted,  in  which  the  law  requires  a  full  proof,  as  for 
example,  where  another  marriage  is  in  question  (such  as  a  subsequent  marriage 
lawfully  established),  or  again,  where  it  is  a  case  of  receiving  orders  (at  the 
instance  of  one  born  of  a  union  imperfectly  proved)  ». 

3.  For  the  proofs  that  the  law  admits  relatively  to  other  effects,  see  Planiol, 
0.  C,  I,  no  866. 


THE  CONDITIONAL   CONSENT  I45 

represente,  les  epoux  sont  respectivement  non  recevables  a  demander  la 
nuUite  de  I'acte  »  ('),  because,  e.  g.,  the  act  was  not  signed  by  them,  and 
the  statement  that  they  did  not  know  how  to  sign  their  names  was  omit- 
ted. Art.  196. 

b/  In  the  case  of  the  children,  when  the  parties  whose  marriage  has  not 
been  established  by  a  civil  act  are  both  deceased,  «  la  legitimite  des  enfants 
ne  peut  etre  contestee  sous  le  seul  pretexte  du  defaut  de  representation  de 
I'acte  de  celebration,  toutes  les  fois  que  cette  legitimite  est  prouv^e  par  une 
possession  d'etat  qui  n'est  pas  contredite  par  I'acte  de  naissance  ».  Art.  197. 

On  the  other  hand  the  «  possession  of  state  »  can  never  be  invoked  by 
the  parties  themselves  as  a  proof  of  their  marriage.  Art.  195. 

2.  Lorsque  la  preuve  d'une  celebration  legale  du  mariage  se  trouve  ac- 
quise  par  le  resultat  d'une  procedure  criminelle,  I'inscription  du  jugement 
sur  les  registres  de  I'etat  civil  assure  au  mariage,  k  compter  du  jour  de  sa 
celebration,  tous  les  effets  civils,  tant  a  I'egard  des  ^poux  qu'k  I'egard  des 
enfants  issus  de  ce  mariage  ».  Art.  198.  See  Thiry,  o.  c,  n.  310. 

3.  The  text  of  art.  194  itself  excepts  the  case  spoken  of  in  art.  46  : 
«  Lorsqu'il  n'aura  pas  existe  de  registres,  ou  qu'ils  seront  perdus  (*),  la  preu- 
ve en  sera  re9ue  tant  par  titre  que  par  temoins  >  ('). 

Article  3.  Conditional  consent. 

I.  Meaning. 

85 

1°  Conditional  consent  is  consent  given  under  a  voiding  or  sus-   Meaning  of 
pensive  condition.  T'^nidi^^ 

The  fulfilment  of  a  voiding  condition  puts  an  end  to  the  obliga- 
tion contracted  ;  thus  I  may  make  a  contract  with  some  one,  but 
under  the  condition  that,  if  my  father  dies,  I  cancel  the  contract ; 
in  this  case  the  contract  is  there,  but  on  the  fulfilment  of  the  con- 
dition, the  obligation  assumed  under  it  ceases  to  exist.  On  the 


is  voiding, 


1.  The  «  possession  of  state  »  can  therefore  supply,  to  a  certain  extent,  for  the 
irregularity  of  the  document  attesting  the  marriage,  but  not  for  the  defects  that 
vitiate  the  celebration  of  the  marriage.  TmRY,  o.  c,  no  300. 

2.  It  scarcely  ever  happens  nowadays  that  the  registers  are  lost, as  a  duplicate 
of  them  is  kept  at  the  office  of  the  Tribunal  of  First  Instance. 

3.  In  such  a  case  a  marriage  might  be  proved,  among  other  ways,  by  papers 
left  by  the  deceased  father  and  mother  J  registers  kept  by  parish  priests  might, 
in  like  manner,  be  admitted  by  the  judge  as  proof  of  marriage. 


146  THE  CONDITIONAL   CONSENT 

that  issus-    other  hand,  the  fulfilment  of  a  suspensive  condition  causes  the  obli- 
penswe.      gg^tion  to  be  contracted.  This  latter  condition  is  the  only  one  that 
renders  the  contract  truly  conditional. 

Now  a  consent  of  this  kind  (we  shall  not  speak  here  ot  the 
voiding  condition)  (')  supposes  : 

a/  that  the  condition  has  been  imposed  actually,  and  not  merely 
interpretatively.  Thus  there  is  no  conditional  consent,  if  one  con- 
tracts marriage  in  such  dispositions  as,  if  he  had  known  such  or 
such  a  thing,  of  which  he  was  ignorant  at  the  time,  he  would  not 
have  bound  himself.  In  other  words,  one  has  to  consider  not 
what  he  would  have  done,  but  what  in  reality  he  did  :  there  is  no 
need  to  take  into  consideration  that  condition  what  he  M'ould 
have  imposed,  if  he  had  thought  of  it  (^). 

b/  That  the  condition  concerns  a  future  and  contingent  event. 
Conditions  that  regard  either  something  that  is  already  past, 
or  something  future,  but  already  certain,  do  not  suspend  the 
consent,  but  a  contract  made  under  such  a  condition,  is  straight- 
way valid  or  invalid,  according  to  the  fulfilment  or  certain  non- 
fulfilment  of  the  condition,  at  the  moment  when  the  consent  is 
given.  Nevertheless  if,  in  certain  cases,  the  fact  of  the  fulfilment 
is  not  known,  the  validity  of  the  consent  is  doubtful. 

c/  That  the  condition  be  an  integral  pari  of  the  contract  itself,  in 
such  manner  that  the  consent  is  attached  thereto  and  held  in  sus- 
pense, and  the  condition  is,  as  they  say,  part  of  the  bargain. 

It  is,  in  fact,  necessary  to  distinguish  conditional  consent 
from  modal  consent,  which  adds  to  the  contract  only  an  acces- 
sory and   supervenient  clause,  that  is  not  an  integral  part  of  the 


I.  The  indissolubility  of  marriage  is  incompatible  with  a  voiding  condition, 
with  the  exception  of  marriage  ratum  non  consutnmatnm,  which  is  dissolved  by 
solemn  vows  and  papal  dispensation.  This  is  the  only  exception  admitted  in  the 
case  of  Christian  marriage. 

3.  Such  might  be  the  case  of  an  antecedent  error,  e.  g.,  as  to  the  quality  of  the 
person  married :  if  the  other  party  had  known  that  it  was  wanting,  he  would  not 
have  contracted  the  marriage.  Here  there  is  no  conditional  consent,  and  on  this 
head  the  marriage  is  certainly  not  invalid.  Nevertheless,  it  may  sometimes  be 
so  for  another  reason,  e.  g.,  if  the  error  concerns  a  quality  that  is  essential  in 
the  eyes  of  the  other  party.  We  will  explain  our  meaning  later,  when  speaking 
of  the  impediment  of  error,  no  360. 


THE  CONDITIONAL  CONSENT  147 

agreement,  and  so  cannot  suspend  or  limit  the  consent  ('). 
2.  There  are  several  kinds  of  conditions.  Some  of  which  are 
repugnant  and  others  not  repugnant  to  the  substance  of  the 
matrimonial  contract ;  some  immoral,  leading  to  sin,  and  others 
honest ;  some  possible,  and  others  impossible.  Such  are  the  prin- 
cipal categories. 

86. 
II.  Principles.  PrincipUs: 

1°  If  the  sus- 

A.  Marriage  contracted  under  a  suspensive  condition  that   is  pensive  condi- 

repugnant  to  the  substance  of  the  matrimonial  contract  is  altoge-  y^K^'^^i  f^ 

ther  invalid  by  the  law  of  nature  itself.  ^«^  substance 

This  is  evident,  since  such  a  consent  involves  a  contradiction  ;  it  renders  it 

one  cannot  pull  down  with  the  one  hand  what  one  builds  up  with      *'tvalid. 

the  other,  nor  consent  and  refuse  in  the  same  breath  (*). 

^87. 

B.  As  regards   matrimonial  consent  given  under  a  suspensive  2»  ^l^^^c/ 0/ « 

condition  that  is  not  repugnant  to  the  substance  of  marriage  :         condftiotrnot 
1.  If  the  condition  is  possible  and  honest.  repugnant  to 

a/  The  marriage,  in  either  forum,  remains  in  suspense  until  the  of  marriage : 

fulfilment  of  the  condition  ;  before  that,  it  has  no  real  existence('),     ^t"**^* . 

and  the  consent  may  still  be  validly  withdrawn  ;  nevertheless, 

such  withdrawal  of  consent  would  be  illicit,  since  there    is  an 

obligation  to  wait  for  the  fulfilment  of  the  condition, 
b/  If  the   condition  fails  to  be   realized,  the  marriage  contract 

fails  too  (*). 


I.  Neither  must  we  confound  the  conditional  contract  with  the  unnamed 
contract  *.  facio  ut  facias  ».  In  the  former  there  is  no  obligation  to  fulfil  the  con- 
dition, but  only  to  execute  the  contract,  if  the  condition  is  fulfilled  J  in  the 
latter,  on  the  other  hand,  there  is  a  double  obligation.  Thus,  if  John  says  to 
Mary  :  «  I  will  marry  you,  if  you  give  me  £  40  »,  this  contract,  if  conditional, 
carries  with  it  for  John  the  obligation  to  marry  if  the  money  is  paid  to  him, 
but  it  puts  no  obligation  on  Mary  to  give  him  the  money  ;  on  the  other  hand, 
if  it  is  the  contract  « facio  ut  facias  »  that  has  been  made  in  these  terms,  then 
John  is  obliged  to  marry,  when  once  the  money  has  been  paid,  and  Mary  on  her 
part  is  obliged  to  hand  over  the  £  40,  provided  the  marriage  follows. 

3.  This  is  confirmed  by  ch.  7,  X,  IV,  5  :  «  If  there  should  be  inserted  in  the 
contract  conditions  contrary  to  the  essence  of  marriage,  e,  g.,  if  the  one  should 
say  to  the  other  :  T  contract  marriage  with  you  on  condition  that  you  avoid 
having  children'...,  the  matrimonial  contract,  however  favourable  it  may  be,  is 
without  effect  ». 

3.  C.5,X,IV,5. 

4.  See  the  causa  Cameracen.,  decided  by  the  Tribunal  of  the  Rota. The  diocesan 


148  THE   CONDITIONAL   CONSENT 

c/  On  the  other  hand,  once  the  condition  is  fulfilled,  the  contract 
spontaneously  becomes  valid,  and,  apart  from  any  legal  provision 
to  the  contrary,  there  is  no  need  to  renew  the  consent.  That  the 
consent  need  not,  of  itself ,  be  renewed,  results  from  the  very  nature 
of  the  conditional  contract  ;  and  the  documents  quoted  by  Santi, 
o.  c.  n°  II  et  seqq.,  and  by  Gasparri,  o.  c,  n°  849  seq., according 
to  Fagnanus,  also  show  it.  This  holds  good  not  only  in  marriages 
exempt  from  the  formalities  prescribed  by  the  Council  of  Trent  or 
by  Pius  X,  but  also  in  those  that  are  subject  to  them  ;  even  in  this 
hypothesis,  provided,  of  course,  that  the  formalities  have  been 
observed,  the  marriage  becomes  valid  as  soon  as  the  condition  is 
fulfilled,  whether  it  was  made  known  to  the  parish  priest  and  the 
witnesses  or  not.  There  is  no  need  to  renew  the  consent  in  the 
prescribed  form,  or  to  notify  the  parish  priest  and  the  witnesses  of 
the  fulfilment  of  the  condition  ;  it  is  sufficient,  where  the  placing 
of  the  condition  was  public,  that  the  fulfilment  of  it  should  be  so 
likewise,  so  that  the  validity  of  the  marriage  may  be  duly  proved. 

The  reason  for  this  is  that  the  marriage  is  contracted  at  the 
moment  when  the  conditional  consent  is  given  in  the  presence  of 
the  parish  priest  and  the  witnesses,  and  not  when  the  condition 
is  fulfilled.  This  is  why,  although  conditional  marriage  is  truly 
valid  and  produces  its  effects  only  at  the  moment  of  fulfilment, 
nevertheless,  by  a  legal  fiction,  it  is  looked  upon  as  contracted 
from  the  time  consent  is  given. 

"What  holds  good  for  the  fulfilment  of  the  condition  and  its 
efficacy  with  respect  to  conditional  marriage,  holds  good  also 
for  any  act  that  implies  the  formal  or  tacit  intention  of  the  parties 
to  render  the  former  consent  absolute  ;  and  in  like  manner  there 
is  no  neccessity  for  the  said  intention  to  be  expressed  in  the  form 
of  the  Decree  Ne  Temere,  but  it  is  enough,  according  to  what  we 
have  said  above,  that,  for  the  legitimate  proof  of  the  marriage, 
there  should  be  public  knowledge  of  the  intention  ('). 


tribunal  of  Cambrai  had  declared  null  a  conditional  marriage,  in  which  the 
condition  concerned  the  absence  of  bodily  odour.  Originally,  on  the  first  hearing, 
the  S.  Rota  declared  that  the  nullity  was  not  established  ;  but  on  a  second  and 
on  a  third  hearing,  respectively  on  August  the  nth  igio  and  on  June  the 
33rd  1911,  it  confirmed  the  decision  of  the  tribunal  of  Cambrai.  See  Acta  Ap.  S., 
II,  p,  961  s.,  and  III,  p.  497  ss. 
I.  This  intention  is  presumed  in  law  whenever  the  conditional  contract  is 


THE  CONDITIONAL   CONSENT  I49 

We  have  said  :  apart  from  any  legal  provision  to  the  contrary.  A 
provision  of  this  kind  really  exists  in  the  matter  of  those  who, 
being  bound  by  a  diriment  impediment,  contract  marriage  under 
the  condition  :  if  the  Pope  grant  a  dispensation  ;  it  is  necessary  for 
them,  after  having  obtained  a  dispensation,  to  renew  their 
consent.  This  provision  ought  not  to  be  extended  in  the  sense  that 
some  give  to  it,  as  if  marriage,contracted  under  the  said  condition, 
were  altogether  null  in  law  and  reputed  as  non-existent  (cf.  n°  21). 
Its  import  is  this  :  the  dispensation,  if  given,  will  not  generally  be 
granted  except  with  the  clause  usual  in  the  case  of  a  dispensation 
in  mairimonio  contracto,  viz.,  that  consent  must  be  renewed  after 
the  removal  of  the  impediment.  See  below,  n°*  408  and  410. 

Note.  Parish  priests  are  forbidden,  except  for  grave  reasons 
and  with  the  permission  of  the  Ordinary,  to  permit  parties  to 
contract  marriage  under  a  condition.  If  a  legitimate  case  occurs, 
it  is  the  rule  that  the  condition  should  be  declared  at  the  time  of 
the  celebration  of  the  marriage,  or  that  it  should  be  made  public 
before  the  wedding.  On  the  fulfilment  of  the  condition,  or  in  case 
of  renunciation,  the  fact  must  be  duly  notified,  so  that  there  may 
be  proof  of  it  in  th&  forum  externum. 

2.  If  the  condition  is  immoral  or  impossible. 

a/  In  the  forum  internum,   an    impossible  condition  ^tv'\o\\.'&\y  h)  immoral  or 
imposed,  renders  the  marriage  null ;  and  he  who  knowingly  acts    *f"po^s">^- 
thus,  gives  his  consent  only  in  jest. 


followed  by  the  conjugal  act,  so  that  the  marriage  by  that  very  fact  becomes 
valid.  This  necessary  (juris  etdejurel  presumption,  established  by  chapters  3,  5 
and  6,  X,  IV,  5,  according  to  the  m.ore  probable  opinion,was  not  abolished  by  the 
Tridentine  discipline,  no  by  the  decree  Nc  Temere,  and  consequently  it  is  neces- 
sary to  admit  that  this  kind  of  presumed  marriage  still  exists.  Leo  XIII  does 
not  seem  to  have  touched  it  at  all  in  his  Constitution  Consensus  mutuus,  of  1893, 
since  he  speaks  in  express  terms  only  of  the  sole  case  of  the  sexual  act 
following  upon  betrothment.  See  above,  no  14,  and  below,  n"  92  ;  Wernz,  o.  c, 
n^  398,  and  compare  with  no  29,  note  13.  Hussarek,  o.  c,  p,  348  ss.,  proposes 
another  explanation  :  in  his  opinion,  the  copula  is  not  equivalent  before  the 
law  to  the  renouncement  of  the  condition,  in  such  a  way  as  to  make  absolute 
the  previous  conditional  consent ;  it  constitutes,  by  virtue  of  the  presumption 
established  by  the  law,  the  marriage-contract  itself;  but  then  one  cannot 
understand  how  such  a  contract  is  valid  without  the  formalities  of  the  Decree 
Nfi  Temere. 


15©  THE  CONDITIONAL  CONSENT 

For  an  immoral  condition  seriously  imposed  the  same  principles 
are  applicable  as  in  the  case  of  an  honest  condition,  but  with  this 
exception,  that  there  is  no  obligation  to  wait  for  the  fulfilment  of 
the  condition. 

b/  In  the  forum  externum,  an  impossible  or  immoral  condition 
is  presumed  not  to  have  been  imposed  seriously,  and  consequently 
the  contract  is  considered  as  absolute  ;  for  c.  7,  X,  IV,  5,  declares  : 
€  conditiones  appositae  in  matrimonio,  si  turpes  aut  impossibiles 
fuerint,  debent  propter  ejus  favorem  pro  non  adjectis  haberi  »   ('). 

Nevertheless,  this  presumption  is  not  juris  ei  de  jure,  and 
consequently  it  admits  of  proof  to  the  contrary  ;  so  that  if  it  is 
established  that  the  condition  was  serious,  it  must  be  judged  in 
the  forum  externum  in  the  same  way  as  in  the  forum  inter- 
num. 

.  in.  Application. 

«5.  ... 

Application.       The  prmciples  which  we  have  just  enunciated   have  to  be 

applied  with  considerable  frequency  for  cases  of  a  condition  repug- 
nant to  the  substance  of  marriage. 
What  has  to     For  the  solution  of  these  cases,  one  ought  to  take  into  account 

^ZS^X  ^^^  f^ll^wi"^  observations  : 

solving  each  1 .  It  is  necessary  to  examine  if  the  condition  is  really  repugnant 
to  the  substance  of  marriage ;  that  is  to  say,  if  it  is  inconsistent  with 
the  rights  and  duties  that  essentially  belong  to  the  conjugal 
union,  viz.,  as  we  shall  see  later,  those  which  concern  sexual 
intercourse  and  the  education  of  the  children  ;  or  if  it  is  destruct- 
ive of  any  one  of  the  essential  properties  of  the  matrimonial 
union,  of  its  sacramental  character,  of  its  indissolubility,  or  of  its 
unity. 

2.  It  is  necessary  to  see  if  the  imposed  condition  is  really  suspen- 
sive, according  to  what  we  have  said  above  in  1°,  that  is  to 
say : 

a/  if  it  has  been  imposed  in  reality,  or  only  interpretatively ,  as  for 


I.  This  presumption  probably  does  not  affect  an  impossible  or  immoral 
condition  concerning  the  past  or  the  present,  but  only  the  future  ;  and  this  is  the 
only  one  that  we  have  in  view  here.  See  the  solution  of  the  case  given  in  the 
Anal,  eccles.,  1901,  p.  64  ss. ;  Wbrnz,  o.  c,  IV,  no  300,  note  31  and  no  303, 
note  39. 


THE  CONDITIONAL  CONSENT  I5I 

example,  by  one  who,  while  contracting  marriage  in  the  usual 
way  and  without  any  restriction,  was  ignorant  that  he  thereby 
contracted  an  absolutely  indissoluble  union,  and  would  not  have 
married  if  he  had  known  that  it  was  so  ;  the  fact  that  he  would 
have  imposed  a  condition  of  dissolubility,  if  he  had  thought  of  it, 
is  obviously  insufficient. 

b/  If  the  condition  is  an  integral  part  of  the  contract,  or  if  it  is 
merely  an  accessory  modification  of  it.  We  have  already  observed 
that  it  is  above  all  necessary  to  keep  this  distinction  in  view. 
The  intention  and  purpose  of  the  contracting  parties  must  decide 
the  question  here  ;  it  is  all  a  matter  of  whether  or  not  the  parties 
were  firmly  resolved  that  the  condition  should  be  a  «  conditio  sine 
qua  non  >  of  the  marriage  ;  whether  or  not  it  was  their  absolute 
and  predominant  determination  to  marry  subject  to  this  condi- 
tion, and  to  break  off  the  match  rather  than  marry  without  it. 

These  considerations  enable  us  to  solve  without  difficulty  the    Examples. 
different  cases  that  may  occur  ;  and  in  particular  : 

A.  The  case  in  which  one  contracts  marriage  under  condition    Marriage 
of  dissolving  the  union  in  case  of  adultery  on  either  side,  as  is  the  ^inderTondi- 
practice  among  Protestants  and  Greeks  (').   If  the   condition   is  tionofdisso- 
really  suspensive,  the  marriage  is  null,  because  it  is  vitiated  in  o/adulterys; 
its  essence  (-)  ;  on  the  other  hand,  if  the  condition  is  not  part  of 
the  agreement,  but  is  simply  accessory  to  it,  or  if  it  is  only  added 
interpretatively,  the  marriage  is  valid  ('). 


89. 


1.  An  analogous  case  frequently  occurs  among  pagans,  who  often  marry  with 
the  intention  of  divorcing  the  wife  after  a  time.  On  this  subject  see  the  solution 
of  the  case  laid  before  the  C.  S.  O.  in  1908,  and  given  in  the  Coll.  Brug.,  t.  XIV, 
p.  341  ss. 

2.  To  the  question  :  «  An  sit  validum  matrimonium  contractum  inter 
catholicam  et  schismaticum  haereticum,  cum  conditione  foedandi  vel  solvendi 
matrimonium  >,  the  C.  S.  O.,  3  Oct.  i860,  replied  :  «  Si  ista  sint  deducta  in 
pactum...  sunt  nulla  ;  sin  aliter,  sunt  valida  ».  Collectanea,  no  1301,  under  n"  8. 

3.  Cf.  the  documents  quoted  in  the  N.  R.  Th.,  t.  XXI,  pp.  594-599,  t.  XXX, 
pp.  611-634  ;  as  well  as  the  decision  given  in  the  Canon.  ConUmp.,  1896,  p.  493. 
Read  also  the  Instructio  of  the  C.  S.  O.,  of  9  Dec.  1874,  no  8,  (in  the  ColUctaneaf 
no  1301)  :  «  Missionarii  in  ea  esse  videntur  sententia,  barbarorum  conjunctiones, 
etiamsi  speciem  quandam  gererent  justi  matrimonii,  omnes  tamen  esse  irritas 
oberrorem  de  conjugii  dissolubilitate...  seu...  esse  vitiatas  intentions  contraria 
substantiae  matrimonii.  Verum  A.  T.  optime  novit  hunc  errorem,  menti 
inhaerentem  et  non  deductum  in  pactum,  matrimonio  non  officere  ».  Cf.  also  the 


152  THE  CONDITIONAL   CONSENT 

Observe  that  in  the  case  given,  there  is  no  question  of  a  voiding 
condition,  as  one  might  think  at  first  glance,  as  if  the  parties 
gave  a  simple  consent  to  the  marriage,  but  with  the  intention  of 
dissolving  the  union  in  case  of  adultery  (*).  As  a  matter  of  fact 
they  do  not  give  a  simple  consent,  but  their  consent  has  reference 
to  a  marriage  that  is  dissoluble  in  case  of  adultery,  to  the  exclu- 
sion of  an  indissoluble  marriage.  This  is  why  the  contract  is 
vitiated  in  its  essence. 
or  ofpractis-  B.  The  case  in  which  one  consents  to  marriage  on  condition 
inmarriu^e*-  °^  practising  onanism,  whether  from  the  beginning  (*),  or  after 
the  birth  of  one  or  two  children  (').  Again  ,  if  it  is  really  a  question 
of  a  suspensive  condition,  and  not,  as  is  usually  the  case,  of  a 
mere  modification  of  the  contract,  the  marriage  is  invalid,  since 
such  a  condition  is  incompatible  with  the  substance  of  marriage, 
inseparable,  as  it  is,  from  the  right  and  obligation  to  generative 
relations. 
or  of  not  c/  The  case  in  which  one  contracts  marriage  on  condition  of 
"^marriage.  ^°*  making  use  of  it  (*).  Here  again  the  same  solution  applies  ;  the 
marriage  will  be  null  or  valid,  according  as  the  clause  in  question 
is  a  true  condition,  and  an  integral  part  of  the  nuptial  contract, 
or  is  merely  an  accessory  modification  of  it. 

The  transfer  of  the  proprietary  right  over  the  bodies  of  the 
respective  parties  is,  in  fact,  of  the  essence  of  marriage,  no  less 
than  that  of  the  right  of  making  use  of  one  another  for  the  pur- 
pose of  generation.  The  essential  object  of  the  matrimonial 
contract  is  no  other  than  the  transfer  of  this  right  with  a  view 


Instructio  of  this  same  Congregation,  of  1877  (Collect.,  n»  1303,  towards  the  end). 
See  also  the  case  decided  by  the  S.  Rota,  34  July  1909,  where  it  is  declared  that 
in  the  case  proposed,  the  nullity  of  the  marriage  is  not  established  ;  it  is  there 
remarked,  as  a  subsidiary  argument,  that  the  husband  had  made  no  mention  of 
the  restriction  placed  on  the  contract,  and  that  this  silence  towards  the  woman 
gives  ground  for  presuming  the  absence  of  the  restriction.  Coll.  Brug.,  i.XlY, 
p.  619  s.  Cf.  also  Causa  Eboracen.,  9  Dec.  igii  (A.  A.  S.,  IV,  p.  153  ss.). 

I.  A  voiding  condition  of  this  kind  would  be  considered  as  not  imposed,  since 
a  marriage,  duly  contracted  with  full  consent,  is  incapable  of  dissolution. 

3.  Marriages  contracted  under  the  condition  of  having  no  children,  are  known 
in  France  as  marias^es  blattcs. 

3.  See  the  case  solved  by  the  S.  C.  C,  in  the  Anal,  eccles.,  1904,  p.  394.  s. 

4.  Cf.  Coll.  Brug.,  t.  XII,  p.  104  s. ;  and  the  case  solved  in  the  Anal,  eccles., 
1904,  p.  394>. 


THE  CONDITIONAL   CONSENT  1 53 

to  generation.  Now,  if  the  condition  of  not  using  the  marriage  is 
an  integral  part  of  the  contract,  the  consent  is  restricted  in  its 
object  to  the  hmits  of  the  imposed  condition  ;  and  is  only  given  to 
the  exclusion  of  the  power  and  right  to  use  one  another.  It  is, 
therefore,  clear  that  such  a  condition  substantially  vitiates  the 
consent. 

On  the  other  hand,  in  the  second  hypothesis,  that  is  to  say, 
where  the  added  clause  is  merely  accessory  to  the  contract, 
matrimonial  consent  is  considered  as  given  simply  and  without 
any  restriction  that  affects  the  bond  itself,  and  consequently  the 
right  to  the  use  of  one  another's  bodies  is  given  mutually,  irrevo- 
cably and  entirely  ;  and  that  right  remains  entire,  notwithstand- 
ing the  accessory  and  separate  agreement  not  to  make  use  of  it.  That 
agreement  does  not  take  away  the  right  to  sexual  intercourse,  a 
right  irrevocably  acquired  by  the  matrimonial  consent,  but  it 
excludes  only  the  use  or  exercise  of  it,  which  does  not  belong 
to  the  essence  of  marriage  ('). 

90. 
Note.  1.  When  the  ecclesiastical  courts  have  to  take  cognizance  of  cases  Observation. 

of  this  kind,  in  which  the  annulling  of  a  marriage,  contracted  under  acon- 
dition  of  not  making  use  of  it,  is  sought,  they  often  abstain  from  pronounc- 
ing its  nullity,  on  account  of  the  difficulty  there  is  in  ascertaining,  if,  in  the 
intention  of  the  contracting  parties,  the  condition  was  really  suspen- 
sive (^). 

Ordinarily,  when  it  can  be  decisively  proved  that  the  marriage  has  not 
been  consummated,  they  rather  advise  an  application  to  the  Pope  for  a 
dispensation  from  a  marriage  ratum  nan  constimmatum.  See  the  cases 
relative  to  this  question  in  the  Revue  des  sciences  ecclesiastiques,  1905,  t,  91, 
p.  31  et  seq.  ;  see  also  the  cases  reported  in  the  Canon,  contemp.,  and  in  the 
Anal,  cedes.,  and  those  of  earlier  date  in  the  Canon,  contemp.,  1901, 
p.  587  s.  and  1903,  p.  297. 

2.  The  preceding  shows  that  it  is  quite  possible  to  contract  marriage  not- 
withstanding a  vow  of  chastity,  mutually  accepted  and  approved.  There  is, 
indeed,  no  reason  why,  on  the  one  hand,  matrimonial  consent  should  not 
be  given  reciprocally  together  with  the  mutual  right  of  property,  full  and 


I.  See  below,  n^  132,  the  distinction  between  the  right  to  the  conjugal  act  and 
the  exercice  of  that  right,  i.  e.,  between  the  radical  right,  as  it  is  called,  and 
the  right  that  can  be  actually  demanded,  the  difference  between  the  mutual  pro- 
perty of  one  in  the  body  of  the  other,  and  the  enjoyment  of  that  property. 

a.  Observe  nevertheless  Causa  Catncracen.,  for  which  see  n.  87. 


154 


THE  KINDS  OF  MARRIAGE 


unrestricted,  over  the  body  ;  and  on  the  other  hand,  why  the  parties  should 
not,  by  a  separate  act,  agree  and  bind  themselves  by  vow  not  to  make  use 
of  the  right  thus  acquired,  and  to  observe  chastity  (•). 

Hence  those  married  under  these  conditions  do  not  sin  against 
chastity  by  the  conjugal  act,  but  against  religion  only,  in  consequence 
of  their  vow  :  while  unlawful  intercourse  with  others  on  the  part  of  the 
same  is  adultery. 

Scholion.  Different  kinds  of  marriage. 


91. 

Marriage 
ratum, 


A.  Marriage  ratum  (ratified),  legitimate,  consummated. 

1.  Marriage  is  said  to  be  ratuni(raiified),  whtn  contracted  validly 
between  two  baptized  persons;  or  when,  having  been  contracted 
between  unbaptized  persons,  it  subsequently  becomes  a  sacrament 
through  the  conversion  and  baptism  of  the  two  parties  ;  or  when 
contracted,  by  dispensation,  between  a  baptized  and  an  unbaptized 
party  (see  n°  107).  From  all  these  kinds  of  marriage  there  results 
a  permanent  union,  which  only  demands  the  consummation  of  the 
marriage  to  render  it  absolutely  indissoluble  (see  n°  197  ss). 
legitimate,  2.  Marriage  is  called  legitimate,  when  it  has  been  validly  con- 
tracted between  unbaptized  persons,  and  has  not  as  yet  become 
a  sacrament  by  the  baptism  of  both  parties  ('). 


1.  The  explanation  given  by  P.  Rett,  Die  Josephselie  in  ihren  Original  und 
ihren  Nachahmung,  in  the  Zcitschr.  f.  k.  Theol.,  1909,  p.  590  ss.,  is  somewhat 
different.  Marriages  of  this  kind,  contracted  between  parties  bound  on  either 
side  by  a  vow  of  chastity,  are  generally  known  as  jfosephsche,  i.  e.,  marriages  in 
imitation  of  that  of  St.  Joseph  with  the  Blessed  Virgin.  This  recalls  the  contro- 
versy, lately  renewed,  as  to  the  marriage  of  St.  Henry  with  St.  Cunegundes, 
Was  this  marriage  a  Josephsehe  or  an  ordinary  marriage,  in  which  the  holy 
Emperor  lived  with  his  wife  as  with  a  sister,  on  account  of  her  impotency  ?  This 
latter  opinion  is  vigorously  maintained  by  I^SaoMULLER,  Theol.  Quartalschr., 
1905,  p.  78  ss.,  and  also  in  the  same  review,  1907,  p.  563  ss.,  and  1911, 
p.  90-ia6  ;  see  also  the  Theol.  Praki.  Quartalschr.,  1905,  p.  325  ss.,  where  the 
traditional  opinion  is  defended  ;  Koch,  o.  c,  who  holds  that  St.  Cunegundes 
was  not  impotent  but  barren,  (Arch.f.  k.  Kirchenr.,  1909,  p.  773  ss.). 

2.  This  is  the  existing  distinction  between  legitimate  and  ratified  marriage. 
The  distinction  made  by  Gratian  was  different.  In  the  Dictum  on  C.  XXVIII,  qu. 
1,  he  calls  marriage  legitimate,  «  when  contracted  according  to  the  legal  institu- 
tions or  customs  of  the  country*,  whether  between  baptized  or  unbaptized 
persons :  in  the  former  case  the  marriage  was  legitimate  and  ratified  (ratum)  ;  in 


THE  KINDS  OF  M^ARRIAGE  155 

3.  Marriage  is  consummated  or  not  consummated,  according  as  the  consummated, 
union,  validly  contracted,  has  or  has  not  been  followed  (')  by  the 
conjugal  act,  suitable  0/ itself  for  the  purpose  of  generation  (*). 

If  the  ratified  marriage  is  followed  by  the  copula,  it  is  said  to  be 
ratum  et  consummatum  ;  if  the  legiiinuite  marriage  is  followed  by  it, 
it  is  called  legitimum  consummatum  ;  if  the  conjugal  act  follows  a 
legitimate  marriage,  and  both  the  parties  are  subsequently  bapti- 
zed, the  marriage  is  then  called  consummatum  et  ratum. 

92. 

B.  Presumed  marriage,  union  having  the  form  or  appearance    presumed, 

of  marriage,  putative  marriage. 

1.  Presumed  marriage  is  that  which  is  established  by  a  presump- 
tion juris  et  dejure  ('),  based  on  some  determinate  fact  as  implying 
matrimonial  consent  (*). 


the  latter  legitimate  and  unratified  (non  ratum).  If  Christians  married  «  without 
observing  the  requisite  institutions  and  solemnities...  their  marriage  was  consi- 
dered not  legitimate,  but  only  ratified  (ratum)*. 

1.  Sexual  intercourse  before  marriage  does  not  count,  but  only  after,  or  at  the 
moment  that  the  marriage  takes  place. 

2.  The  conjugal  act,  if  onanistic  or  incomplete,  no  matter  in  what  way,  does 
not  consummate  the  marriage.  See  on  this  subject  Sanchez,  o.  c,  t.  II,  disp. 
XXI ;  and  Gasparri,  o.  c,  n°^  1064  ss.  Observe  that  these  authors  declare  the 
marriage  to  be  consummated  even  when  the  semen  has  entered  the  vagina  without 
penetration  by  the  man,  as  for  example,  by  means  of  artificial  fecundation,  or 
by  diabolical  agency.  On  the  other  hand  any  copula  fitted  for  generation  is 
considered  to  consummate  the  marriage,  whether  voluntary  or  involuntary, 
conscious  or  unconscious.  Cf.  Hussbrak,  o.  c,  p.  250  ss. 

3.  Santi,  o.  c,  1.  IV,  tit.  I,  no  77,  and  Gasparri,  o.  c,  no  237,  in  opposition  to 
Wernz,  o.  c,  IV,  no  29,  note  12,  hold  that  marriage  is  presumed  only  in  case  of 
presumption y«y»s  et  dejure,  i.  e.,  that  does  not  admit  of  direct  proof  to  the  con- 
trary, unless  it  happen  to  be  evident. 

4.  Formerly  there  were  reckoned  three  kinds  of  presumed  marriage  :  a/  the 
case  of  the  copula  following  on  betrothment ;  b/  the  case  of  the  copula  following 
on  a  conditional  marriage,  inasmuch  as  sexual  intercourse  then  implied  renuncia- 
tion of  the  condition  ;  c/  cases  in  which  those  below  the  age  of  puberty,  after 
having  contracted  a  marriage  that  was  invalid  on  account  of  their  age,  ratified 
their  contract  by  the  conjugal  act  on  reaching  the  required  age. 

In  the  sequel,  when  the  law  on  clandestinity  had  come  into  force,  presumed 
marriages  were  abrogated  for  all  cases  subject  to  that  law,  except,  according  to 
the  most  probable  opinion,  for  that  in  which  the  copula  followed  a  marriage 
celebrated  under  condition,  in  the  form  of  the  Council  of  Trent  ;  for,  according 
to  what  we  have  said  above  in  no  37,  the  conditional  consent  spontaneously 


156  THE  KINDS   OF  MARRIAGE 

having  the  2.  A  union  having  the  appearance  of  marriage  (')  is  one  that  has 
marriage,  been  contracted  in  an  invalid  manner,  but  according  to  the  for- 
mahties  (though  perchance  with  some  essential  defect),  prescrib- 
ed by  the  Council  of  Trent  or  by  Pius  X,  where  they  are  in  force  ; 
so  also,  it  would  seem,  is  a  marriage  contracted  without  these 
formalities,  but  in  such  a  way  that  the  omission  is  not  known, 
and  the  pseudo-married  parties  are  publicly  reputed  as  lawfully 
wedded,  «  en  possession  d'etat  »,  as  the  civil  law  says  (see  n°  84). 
Marriages  exempt  from  the  law  of  clandestinity  are  considered  to 
have  the  appearance  of  marriage  from  the  time  that  consent, 
valid  in  the  natural  law,  and  at  the  same  time  external,  was 
given  (*). 

Note  that  the  Church  explicitly  denies  the  appearance  and  form 
of  marriage  to  a  civil  union,  when  contracted  by  persons  subject  to 
the  law  of  clandestinity   (').  On  the  other  hand,  in   the  case  of 


becomes  valid  from  the  time  that  the  condition  is  fulfilled  or  renounced,  without 
there  being  any  need  to  renew  it  in  the  form  prescribed  by  the  Council.  For 
marriages  exempt  from  the  law  of  clandestinity ,  as  we  have  said  above,  no  14,  the 
presumption  jwrts  et  dejtire  based  upon  the  copula  following  on  betrothment  has 
been  abolished  by  the  Constitution  Consensus,  of  Leo  XIII,  in  1893  ;  but  the  two 
other  presumptions  have  not  suffered  the  like  fate.  Wernz  rightly  demonstrates 
this  against  those  who  hold  the  contrary  opinion,  o.  c,  IV,  p.  29,  note  13,  and 
compare  with  the  decree  of  the  C.  S.  O.,  28  June  1865  ;  see  also  below,  n«>  374. 

I.  These  marriages  enjoy  several  legal  privileges  :  they  more  easily  obtain 
a  sanatio  in  radice,  and  the  legal  principle,  that,  when  there  is  doubt  as  to  the 
validity  of  the  act,  it  is  to  be  held  as  valid,  is  applicable  to  them. 

a.  According  to  Wernz,  o.  c,  n"  39,  note  11,  «  Marriages  contracted  invalidly 
by  an  infidel  or  a  heretic  with  a  baptized  person,  whether  a  Catholic  or  not,  even 
in  countries  where  heretics  are  bound  to  observe  the  formalities  prescribed  by 
the  Council  of  Trent,  or  by  Pius  X,  must  not  be  reckoned  as  cases  of  concubinage, 
but  among  those  unions  which  have  the  appearance  of  marriage,  as  often  as  the 
formalities  of  marriage  have  been  complied  with  in  accordance  with  the  rites  of 
the  heretical  or  pagan  country  in  question,  and  when  these  marriages  are  there 
reputed  legitimate  ».  Cf.  Collectanea,  n.  1301,  p.  451. 

3.  Cf.  the  deer,  of  the  C.  S.  O.,  31  Aug.  1861,  and  the  Instr.  of  the  S.  Penit.,  15 
Jan.  1866 ;  Gasparri,  o.  c,  I,  no  480  and  698,  and  compare  with  no  340.  See  also 
what  we  say  below  no  305,  311  and  408,  where  we  treat  of  affinity,  public  decency 
and  sanatio  in  radice  ;  in  the  last  named  passage  we  remark  that  nowadays  the 
marriage,  when  contracted  between  persons  subject  to  the  law  of  clandestinity, 
is  sometimes,  though  not  without  difficulty,  put  right  by  a  sanatio  in  radice ;  it  is 
supposed  that  the  parties  gave  a  real  matrimonial  consent,  bee  below,  no  333. 


THE  KINDS  OF  MARRIAGE  157 

contracting  parties,  even  if  Christians,  who  are  not  subject  to  that 
law,  civil  marriage  may  generally  pass  as  a  union  that  has  the 
appearance  of  marriage  ;  and  in  particular  it  ordinarily  gives 
ground  for  a  presumption  of  a  contract  valid  in  conscience,  as  we 
shall  show  later,  in  n°  233. 

3.  Aputative  marriage  is  one  that  is  contracted  invalidly,  but  in    putative, 
good  faith,  at  least  by  one  of  theparties  (*). 

C.  Clandestine  marriage,  marriage  of  conscience,  morganatic 
marriage. 

1.  Clandestine.  g^ 

a/  According  to  its  etymology  the  word  signifies  in  the  first   clandestine, 
place  a  marriage  contracted    in  secret  and  without  witnesses,    so 
that  there  is  no  legal  proof  of  it  (*). 

b/  In  the  second  place  it  denotes  also  a  marriage  contracted 
without  the  usual  solemnities  (').  Such  are  those  that  are  not  cele- 
brated before  the  church,  and  with  the  blessing  of  the  priest  (*). 

c/  In  the  third  place,  it  comprises  marriages  celebrated  without 
the  banns  or  preliminary  proclamations,  required  by  the  Council  of 
Lateran  (*), 

d/  Lastly  it  embraces  unions  effected  without  the  formalities 


I.  See  below  no  163,  where  we  speak  of  the  legitimacy  of  children  conceived  in 

a  putative  marriage. 

3.  Cf.  EsMEiN,  o.  c,  I,  p.  182,  where, in  note  i,  he  gives  the  text  of  the^Mmma 
of  Godfredus  :  «  There  are  two  kinds  of  marriages  called  clandestine  :  those  of 
the  first  kind  are  such  as  are  contracted  in  secret  and  without  witnesses  so  that 
no  legitimate  proof  of  them  appears  >. 

3.  Ibidem  :  «  Those  of  the  second  kind  are  such  as  are  contracted  without  the 
solemnities  ».  See  also  1.  c,  p.  179,  in  note  2  on  the  Summa  Hostiensis  :  «  Marri- 
ages (are  called)  clandestine...  in  the  first  place  on  account  of  the  omission  of 
certain  solemnities  required  for  their  lawfulness,  to  wit,  the  blessing  before 
the  church  ».  See  also  Schultb,  o.  c,  p.  41  s. 

4.<Aumoyen  dge  la  coutume  etait  generalement  que  les  epoux  vinssent  devant 
la  porte  de  I'eglise  :  1^  ils  etaient  interroges  par  le  pretre,  qui  leur  demandait 
s'ils  consentaient  a  se  prendre  pour  mari  et  femme  :  puis  ils  recevaient  la  bene- 
diction ».  EsMEiN,  o.  c,  I,  p.  179.  In  note  3,  he  gives  the  text  of  Panormitanus  : 
<  Note  that  the  bridegroom  and  the  bride  before  the  consummation  of  the 
marriage,  are  blessed  ante  valvas,  i.  e.,  before  the  doors  of  the  church.  In  some 
places,  however,  they  are  blessed  before  the  altar  with  a  cloth  spread  over 
them>.  See  below  n"  122,  and  above,  no  63,  note. 

5.C.3,X,IV.3. 


94. 


158  THE  KINDS  OF  MARRIAGE 

prescribed  by  the  Council  of  Trent  or  by  the  decree  Ne  Temcre, 
that  is  to  say,  without  the  presence  of  the  parish  priest  and  at 
least  two  witnesses  (•). 

This  last  is  the  stricl  acceptation  of  the  word,  which,  apart  from 
any  indication  to  the  contrary,  is  always  to  be  understood  where 
clandestine  marriage  is  spoken  of. 

marriage        2.  Marriage  of  conscience. 

conscience  This  is  a  marriage  that  is  contracted  in  the  form  required  by 
the  Council  of  Trent  or  by  Pius  X,  but  in  such  a  manner  that,  as 
far  as  possible,  it  remains  secret  and  unknown  to  the  public.  In  it  the 
antenuptial  proclamations  are  omitted,  and  the  consent  is  given 
in  the  presence  of  the  parish  priest  or  his  delegate  and  of  two 
friendly  witnesses,  all  of  whom  previously  engage  themselves  to 
observe  secrecy  ;  the  marriage  is  entered  in  a  secret  register  kept 
at  the  diocesan  chancery. 

Such  marriages,  though  not  clandestine,  certainly  ought  not  to  be  permit- 
ted without  very  grave  reason,  since  from  their  nature  they  are  liable  to 
have  evil  consequences,  as  Benedict  XIV  remarks  in  his  Constitution  of 
17  Nov.  1741,  Satis  Vobis  (*),  par.  1-5. 

Nevertheless  the  Church  tolerates  them  in  circumstances  that  are 
altogether  exceptional  :  in  the  case  of  an  officer  whom  the  law  will  not 
permit  to  marry  owing  to  a  question  of  dowry  ;  in  the  case  of  engaged 
parties,  who,  in  consequence  of  the  civil  marriage  of  one  of  them,  cannot  be 
married  before  the  law ;  and  in  the  case  of  a  royal  personage,  who,  being 
widowed,  wishes  to  marry  again  for  reasons  of  conscience,  but  at  the 
same  time  has  most  urgent  reasons  for  keeping  his  new  marriage 
secret  (3). 


I.  In  the  XVI  and  XVII  centuries,  in  France,  a  marriage  contracted  without 
parental  consent  was  sometimes  called  clandestine.  See  Desforges,  o.  c,  p. 
144;  Planiol,  o.  c,  I,  p.  746.  This  is  the  explanation  of  the  fact,  that  the  Coun- 
cil of  Trent,  Sess.  XXIV,  c.  I,  De  Ref.Matr.,  treats  at  the  same  time  of  clandesti- 
nity  and  parental  consent, 

3.  The  text  may  be  found  in  Gasparri,  o.  c,  II,  p.  53a  ss.  See  also  Gennari- 
BouDiNHON,  o.  c,  and  P.,  consult.  6. 

3.  There  is  likewise  grourd  for  a  marriage  of  conscience,  as  Benedict  XIV 
remarks  1.  c,  «  in  the  case  of  those  who  are  publicly  living  as  husband  and  wife, 
and  whom  everybody  believes  to  be  married,  while,  as  a  matter  of  fact,  they  are 
living  in  secret  concubinage  ».  Nevertheless,  as  in  this  case  they  are  publicly 
looked  upon  as  married,  this  is  not,  strictly  speaking,  a  marriage  of  conscience  ; 


THE  KINDS  OF  MARRIAGE  159 

It  is  to  be  understood  that  the  Church  in  permitting  these  unions 
reserves  to  itself  the  right  of  making  them  pubUc,  even  against  the  will  of 
the  parties,  if  the  good  of  the  children  or  the  fear  of  a  scandal  demands  it. 

Moreover,  the  Church  prescribes  in  these  various  cases  the  prudential 
measures  that  are  to  be  carefully  observed  ;  these  are  enumerated  by 
Benedict  XIV  in  the  constitution  referred  to  above,  par.  7  ss.  ;  the  two 
principal  are  : 

a/  The  parish  priest  must  transmit  to  the  Bishop  a  written  document, 
giving  the  place  and  date  of  the  marriage,  and  the  witnesses  who  assisted 
at  it,  in  order  that  these  particulars  may  be  transcribed  and  preserved 
indefinitely  in  the  register  kept  for  this  purpose.  This  register  is  entirely 
distinct  from  that  in  which  marriages  publicly  contracted  are  ordinarily 
entered  (').  b/  It  is  necessary  to  declare  the  birth  of  the  children  and  to 
notify  the  same  to  the  Bishop  (*). 


their  situation  is  less  delicate,  and  the  measures  of  precaution  to  be  taken  are 
less  severe  than  in  the  examples  given  in  the  text. 

A  case  of  marriage  of  conscience,  strictly  so  called,  is  given  in  the  Review 
II  Monitore  Eccles.,  1910,  p.  137  s.  A  dying  man  confessed  to  the  priest  that  he 
had  been  living  in  concubinage,  without  being  reputed  as  married,  and  without 
any  union  on  his  part  that  might  pass  as  having  an  appearance  of  marriage.  On 
the  one  hand  his  salvation  required  that  he  should  rectify  his  position  by  a  real 
and  valid  marriage  ;  on  the  other  hand  the  secrecy  of  confession  placed  an 
obstacle  in  the  way  of  the  publicity  of  the  union.  It  was  accordingly  necessary 
to  have  recourse  to  a  marriage  of  conscience,  and  to  obtain  from  the  penitent 
permission  to  communicate  the  fact  to  the  Bishop,  in  order  that  the  marriage 
might  be  entered  in  the  secret  register. 

I,  «  This  register  for  secret  marriages  must  be  properly  made,  fastened  and 
sealed,  and  it  mus  be  carefully  kept  in  your  episcopal  chancery  ;  you  will  not 
permit  it  to  be  unsealed  and  opened  except  when  there  is  occasion  to  enter 
other  marriages  of  the  same  kind,  or  when  the  exigencies  of  the  administration 
of  the  diocese  require  it,  or,  again,  when  those  who  have  a  real  interest  demand 
a  particular  or  a  proof  which  they  cannot  obtain  elsewhere ;  you  must  take 
great  care  to  have  it  fastened  and  sealed  again  afterwards.  The  written  attes- 
tations of  marriages  celebrated  in  secret,  which  parish  priests  or  their  delegate 
have  to  send  to  you,  must  be  transcribed  word  for  word  in  the  register,  and  the 
person  to  whom  you  entrust  this  task,  must  be  of  an  irreproachable  reputation 
and  of  an  integrity  that  is  universally  recognised  >.  L.c,  par.  11. 

3.  «  We  will  and  expressly  ordain  »  continues  Benedict  XIV,  speaking  to  the 
Bishops,  «  that  after  the  baptism,  the  father  of  the  child,  or,  if  he  be  dead,  the 
mother,  shall  inform  you  of  the  birth,  either  verbally,  or  by  an  autograph 
letter,  or  by  the  agency  of  some  person  worthy  of  credit,  appointed  by  them,  in 
order  that  you  may  be  quite  certain  of  the  fact,  as  well  as  of  the  date  and  place 
of  baptism, and  that  you  may  know  that  the  child  baptized  under  the  names  of  its 


l6o  THE  KINDS  OF  MARRIAGE 

Note.  The  Civil  Code  of  Spain  contains  ita  own  special  provisions  with 
regard  to  marriages  of  conscience  ('). 

morganatic.      3.  Morganatic  marriage. 

Marriage  is  called  morganatic  w^hen  contracted  between  a  man 
of  princely  or  royal  birth  (^)  and  a  woman  of  inferior  rank  ('),  in 
such  a  way  that  while  this  union  enjoys  its  full  rights  in  the  eyes 
or  the  Church,  from  the  civil  point  of  view  the  wife  does  not  share 
the  rank  of  her  husband,  and  the  children  are  deprived  of  the 
paternal  titles  and  offices,  and  are  debarred  from  the  right  to  the 
full  and  entire  inheritance  of  their  father  and  of  their  paternal 
ancestors  (*). 

It  follows  from  this  definition  that  the  existence  of  a  morganatic  marriage 


parents  or  under  fictitious  names,  is  legitimate,  although  the  issue  of  an  occult 
marriage.  As  soon  as  you  are  furnished  with  these  particulars,  and  tor  fear  of 
forgetting  them,  you  will  cause  them  to  be  faithfully  entered  in  a  register  by 
him  whom  you  shall  have  appointed  to  register  occult  marriages.  The  register 
containing  the  names  of  the  baptized  and  of  their  fathers  and  mothers,  though 
it  ought  to  be  distinct  from  the  register  of  marriages,  must  nevertheless  be  kept 
with  the  same  care,  secured  with  the  same  seals,  and  locked  up  with  the  same 
precautions  in  the  episcopal  chancery  as  the  register  of  marriages,  in  the  case  of 
which  we  have  enumerated  above  the  precautions  that  are  to  be  taken  ».  L.  c, 
par.  II. 

1.  «  Le  mariage  secret  de  conscience,  c^l6br6  devant  I'Eglise,  n'est  soumis  k 
aucune  formalit6  d'ordre  civil,  mais  ne  produit  plus  aucun  effet  civil  tant  qu'il 
n'a  pas  6t6  rendu  public  par  son  inscription  sur  le  registre  civil.  Toutefois  ce 
mariage  pent  produire  des  effets  civils  d^s  lejour  de  Id  celebration,  si  les  conjoints, 
d'un  commun  accord,  sollicitent  de  I'^veque  qui  I'a  autorisd,  un  extrait  consign^ 
sur  le  registre  secret  de  l'6vech6  et  le  remettent  directement,  et  avec  la  reserve 
convenable,  k  la  direction  g6n6rale  du  registre  civil,  en  en  demandant  I'inscrip- 
tion.  La  direction  gen6rale  tient,  k  cet  effet  un  registre  special  et  secret,  avec 
les  precautions  n^cessaires  pour  que  le  contenu  n'en  soit  pas  connu  avant  que  les 
parties  n'aient  demand^  que  I'acte  soit  rendu  public  par  une  transcription  sur  le 
registre  municipal  de  leur  domicile  ».  In  accordance  with  art.  76,  Lehr,  o.  c,  no 
361. 

2.  Cf.  Leitner,  Lehrb.,  p.  75,  where  he  enumerates,  for  Germany  and 
Austria,  the  families  to  which  this  special  provision  of  the  civil  law  applies. 

3.  Marriage  may  also  be  celebrated  in  the  morganatic  form  between  two 
persons  of  equal  nobility,  when  the  man  is  a  widower  and  wishes  to  remarry, 
but  cannot,  according  to  the  law  of  certain  countries,  place  the  children  by  a 
second  marriage  in  the  same  rank  as  those  by  the  first. See  Kirchenkxikon  under 
Bhe  zur  linkett  Hand. 

4.  Cf.  Benedict  XIV,  De  Syn.  dioec,  1.  XIII,  c.  23,  no  12. 


THE  KINDS  OF  MARRIAGE  l6l 

is  due  to  the  action  of  the  civil  law.  This,  in  the  different  countries,  admits 
or  rejects  the  distinction  (with  distinct  civil  effects)  between  ordinary 
marriages  and  marriages  contracted  between  personages  of  exalted  rank 
and  women  of  humbler  birth.  The  distinction  between  ordinary  and  mor- 
ganatic marriages,  is  almost  entirely  confined  to  Germany  and  Austria  («). 

The  term  morganatic  is  most  probably  derived  from  the  German 
Morgengabe,  in  its  more  ancient  form  Morgengeba,  which  was  a  present 
given  by  the  husband  to  the  wife  after  the  first  night  of  the  marriage,  as  the 
price  of  her  virginity  (-) ;  for  in  a  morganatic  marriage  the  wife  and  the 
children  do  not  share  in  the  possessions  and  honours  of  the  husband  and 
father,  except  in  a  very  limited  degree  ;  their  portion  is  nothing  more  than 
a  mere  Morgengabe  (").  These  unions  are  also  known  as  left-handed  mar- 
riages (*)  and  marriages  according  to  the  Salic  law  {^). 

We  must  not  confound,  as  is  often  done,  morganatic  marriage  with  mar- 
riage of  consciettce, ihongh  they  both  frequently  present  the  like  characteris- 
tics. The  difterence  consists  in  this,  that  a  morganatic  marriage  may  be 
celebrated  in  public,  with  the  usual  solemnities,  and  in  the  presence  of  a 
great  concourse  of  people  (®),  while  a  marriage  of  conscience  is  by  no 

I.  Thus  the  Belgian  civil  code  ignores  this  distinction,  and  accordingly  a 
civil  marriage  lawfully  contracted  by  an  exalted  personage,  even  by  the  King 
himself,  would  still  have  the  same  civil  effects,  whether  the  bride  were  a  prin- 
cess or  a  seamstress.  Moreover,  in  virtue  of  art.  60  of  the  Constitution,  children 
lawfully  bom  of  such  a  marriage  would  not  be  excluded  from  the  throne.  The 
marriage  of  a  prince  with  a  woman  of  lower  condition,  that  did  not  bring  with  it 
the  above  mentioned  legal  inequality,  would  be  called  disparagium.  Cf.  Schnit- 
ZER,  o.  c,  p.  36. 

a.  See  Lefebvre,  o.  c,  p.  427  s. 

3.  Kirchenlexikon,  1.  c. ;  Ferraris,  Prompta  Bibliotheca,  Vo  matrim.  ad 
morganaticam  ;  Scherer,  o.  c,  par.  109,  note  29 ;  Heiner,  Grundriss,  p.  aa  ; 
Wernz,  o.  c,  IV,  no  29  ;  Leitner,  Lchrb.,  p.  75  s. ;  Freisen,  o.  c,  p.  53  ss. 

4.  «  Ehe  zur  linken  Hand  heisst  sie,  weil  die  Frau  dem  Manne  nur  an  die  linke 
Hand  angetraut  wird,  zum  Zeichen  dass  sie  nicht  als  ebenbiirtig  in  seine  Familie 
tritt,  daher  auch  nicht  seines  Standes  teilhaftig  wird  ».  Heiner,  1.  c. 

5.«  Das  salische  Gesetz  bestimmte  nun  dass  die  cognati  nur  nach  absterben  der 
agnati  zur  Erbschaft  gelangen  sollten.Heiratennach  dem  salischen  Gesetze  hiess 
also  unter  der  Bestimmung  heiraten,  dass  die  Kinder  alle,  auch  die  Sohne,  nur 
als  cognati  zu  betrachten  seien,  die  erst  beim  Fehlen  der  agnati  zur  Erbschaft 
gelangen  sollten  ».  Leitner,  Lehrb.,  p.  76. 

6.  The  marriage  of  the  Archduke  Francis  Ferdinand,  heir  to  the  crown  of 
Austria,  is  a  case  in  point.  On  the  i  July  1900  this  prince  married  Sophia,  Coun- 
tess of  Choteck.The  marriage  was  contracted  morganatically,  after  the  prince  had 
renounced  the  imperial  dignity  for  his  wife,  and  the  right  to  the  crown  for  his 
children  ;  but  it  was  solemnized  with  full  ceremonial  and  with  royal  pomp. 


l62  THE  KINDS   OF  MARIAGE 

means  always  morganatic  :  the  man  may  not  be  of  noble  rank,  or  not  so 
in  the  required  degree  for  the  special  provisions  affecting  marriages  of  this 
kind  to  be  applicable  to  him  ;  or,  again,  the  civil  law  of  the  country  may 
not  admit  of  the  distinction  between  morganatic  and  other  marriages,  and 
may  not  attach  any  distinct  civil  effects  to  such  marriages.  On  the  other 
hand,  in  countries  where  morganatic  marriage  is  recognised  by  the  civil 
law,  it  often  has  the  same  characteristics  as  marriage  of  conscience,  for  it 
is  quite  natural  that  a  morganatic  marriage  should  be  celebrated  as  a 
marriage  of  conscience,  since  the  reasons  that  render  it  desirable  to  keep 
the  marriage  secret  are  most  frequently  met  with  in  families  of  princely  or 
exalted  rank  ;  while  a  marriage  of  conscience  between  a  man  of  very  high 
position  and  a  woman  of  ordinary  condition,  will,  in  such  countries, 
necessarily  be  morganatic,  since  the  wife  and  children  remain  unrecognised, 
and  cannot  enjoy  the  titles  and  offices  that  pertain  to  the  husband  and 
father  respectively. 


THE  SACRAMENT  OF  MARIAGE  163 

Section  II 

THE  MATRIMONIAL  CONTRACT  CONSIDERED 
AS  A  SACRAMENT 

In  the  first  chapter  we  shall  show  that  the  matrimonial  contract 
is,  by  the  institution  of  Christ,  a  sacrament ;  in  the  second  chapter 
we  shall  treat  of  the  connection  between  the  contract  and  the 
sacrament  ;  and  in  the  third  chapter  we  shall  explain  the  nature 
and  the  constitution  of  the  sacrament,  deahng  successively  with 
the  minister,  the  effect,  the  subject  and  the  ceremonies. 

Chapter  I. 

THE  EXISTENCE  OF  THE  SACRAMENT  OF  MARRIAGE. 

Proposition.  The  matrimonial  contract  between  baptized  persons  is 
a  sacrament  of  the  New  Law. 

The  demonstration  of  this  proposition  can  be  made  both  dog-   Marriage  is 
matically,  for  Catholics  only,  who  admit  the  infallibility  of  the  « ^*^''*»"'»'- 
Church  ;  and  historically,  so  as  to  appeal  also  to  heretics,  particu- 
larly Protestants  (*),  and  all  those  who  reject  this  infallibiUty. 

I.  Dogmatically. 

1.  By  the  definition  of  the  Councils,  and  especially  by  that  of  the  1°  Dogmatic 
Council  of  Trent,  Sess,  XXIV,  can.  i,  which  pronounces  anathema      "'um.^'^ 
against  anyone  who  shall  dare  to  maintain    «  that  matrimony  is 


I.  Although  at  first,  in  some  of  his  writings,  Luther  seems  to  acknowledge  a 
certain  sacramentality  in  marriage,  yet  he  denied,  and  with  increasing  insistence, 
that  marriage  is  a  true  sacrament  (as  we  have  noted  above,  no  55),  in  conformity 
with  his  principles  concerning  the  nature  and  efficacy  of  the  sacraments.  Accor- 
ding to  him,  marriage  is  not  of  a  nature  to  stimulate  faith,  though  the  efficacy  of 
the  sacraments  consists  therein.  Cf.  Grisar,  Luther,  II,  p.  ai6  ss.,  and  compare 
with  Friedberg,  Das  Recht,  p.  157  ss. 

Calvin  also  utterly  denied  this  sacramentality  ;  to  him  marriage  was  some- 
thing merely  profane:  «  Postremum  est  matrimonium  quod,ut  a  Deo  institutum 
fatentur  omnes,  ita  pro  sacramento  datum  nemo  usque  ad  Gregorii  tempora 
viderat.  Et  cui  unquam  sobrio  in  mentem  venisset  ?  Ordinatio  bona  est  et  sancta; 
et  agricultura,  architcctura,  sutrina,  tonstrina  ordinationes  sunt  Dei  legitimae, 
nee  tamen  sacramenta  sunt  >.  Friedberg,  Das  Recht,  p.  185  ;  cf.  Faurey,  o.  c, 
p.  50  ss.,  and  Howard,  o.  c,  I,  p.  386  ss. 


164  THE  SACRAMENT   OF  MARRIAGE 

not  truly  and  properly  one  of  the  seven  sacraments  of  the  evange- 
lical law,  instituted  by  our  Lord  Jesus  Christ  ». 

The  Church  had  already  laid  down  the  same  doctrine  in  the 
Council  of  Verona,  in  1184,  at  which  Lucius  III  decreed  :  «  uni- 
versos  qui  de  sacramento  Corporis  et  Sanguinis  D.  N.  J.  Christi, 
vel  de  Baptismate,...  aut  de  Mairimonio,  vel  de  reliquis  ecclesiasti- 
cis  sacramentis  aliter  sentire  aut  docere  non  metuunt,  quam 
Romana  Ecclesia  praedicat  et  observat....  vinculo  perpetui  ana- 
thematis  innodamus  >  (').  The  second  council  of  Lyons,  in 
1274  (*)»  ^^^  th^  Council  of  Florence  (')  teach  the  same.  Later, 
among  other  doctrinal  documents  of  the  Church,  the  Encyclical, 
Arcanum,  of  Leo  XIII,  is  noteworthy  (*),  and  also  the  decree 
Lamentabili  censuring  proposition  51  ("). 

2.  By  the  unanimous  and  explicit  belief  of  the  Catholic  Church  from 
the  XIII  century  at  least.  No  one  can  deny  that  since  the  thir- 
teenth century  the  doctrine  of  the  sacramental  character  of 
matrimony  has  been  in  full  and  peaceable  possession,  and  that 
both  the  Doctors  and  the  Schools  have  held  it  explicitly  as  a  doc- 
trine offaith.yVe  have  proof  of  this  in  the  Councils  and  professions 
of  faith,  of  which  we  have  spoken  above  in  i.  ("),  no  less  than  in 
the  unanimity  of  scholastic  theologians  from  the  time  of  Peter 
Lombard  and   Saint  Thomas   (').   But    everyone    knows    that, 


I.  C.g.X.V,  7. 

3.  Denzinger,  Enchiridion,  n°  465  :  «  Tenet  etiam  et  docet  eadem  S.  R. 
Ecelesia  septem  esse  ecclesiastica  sacramenta,  unum  scil.  Baptisma...  aliud  est 
Matritnonium  ». 

3.  «  Septimum  est  sacramentum  matrimonii  ». 

4.  «  Apostolis  magistris  accepta  referenda  sunt  quae  SS.  Patres  nostri,  conci- 
lia et  universalis  Ecclesiae  traditio  semper  docuerunt,  nimirum  Christum  Domi- 
num  ad  sacramenti  dignitatem  evexisse  Matritnonium  » . 

5.  «  Matrimonium  non  protuit  evadere  sacramentum  Novae  Legis  nisi  serius 
in  Ecclesia  :  siquidem  ut  matrimonium  pro  sacramento  haberetur,  nccesse  erat 
ut  praecederet  plena  doctrinae  de  gratia  et  sacramentis  theologica  explicatio.  » 
Denzinger,  o.  c,  n.  2051. 

6.  Cf.  the  documents  given  at  length  by  Palmieri,  o.  c,  p.  53-54 ;  Pesch, 
Tractatus  Dogmatici,  Friburgi-Brisgoviae,  1897,  t.  VII,  n.  707  ss.  ;  Pourrat,  o. 
c,  p.  346-249;  Sassc,  Institutiones  thcologicae  dc  Ecclesiae  sacramentis,  Friburgi- 
Brisgoviae,  1897,  II,  p.  35  s. 

7.  ScoTUS,  in  /.  IV  Sent.,  Dist.  26,  qu.  1,  unhesitatingly  affirms  :  <  Commu- 
niter  tenet  Ecclesia  sacramentum  Matrimonii  esse  septimum  inter  ecclesiastica 
sacramenta,  et  de  sacramentis  Ecclesiae  non  est  aliter  sentiendum  quam  sentit 


THE  SACRAMENT  OF  MARRIAGE  165 

according  to  Catholic  principles,  the  belief  of  the  Church  consti- 
tutes an  incontrovertible  criterion  of  apostolic  tradition,  as  often 
as  it  is  universal  and  bears  on  a  point  considered  as  belonging  to 
the  deposit  of  faith. 

II.  Historically. 

A.  Indirectly,  by  argument  from  prescription. 

It  is  a  well  known  fact  that  the  separated  Oriental  churches,  Historical  de- 
that  is  to  say,  the  Orthodox  Greek,  the  Coptic,  the  Armenian  and  '^l^inJirec^h 

Nestorian,  regard  marriage  as  a  sacrament.  This  is  clear  from  h  argument 

front  prcs- 
their  writmgs  and  formulas  of  faith  (*).  criptton ; 

This  fact  affords  us  an  argument  from  prescription  in  favour  of 
apostolic  tradition  by  the  following  course  of  reasoning.  The  doc- 
trine that  the  Greek  schismatics,  and  other  sects  mentioned  above, 
hold  to-day,  was  held  by  them  at  the  time  of  the  schism,  when 
they  separated  from  the  Catholic  Church.  For,  once  the  separa- 
tion was  effected,  it  is  not  conceivable  that  sects  differing  from 
one  another  in  belief,  language,  rites  and  customs,  and  all  at 
variance  with  the  Latin  Church,  could  severally  have  introduced 
this  particular  point  of  doctrine,  still  less  conceivable  is  it,  that 
they  should  have  accepted  it  unanimously  from  the  Latin  Church 

Ecclesia  Romana  ».  Among  all  the  scholastics  Durandus  is  the  only  exception, 
and  even  he  confirms  the  tradition  of  the  Church  on  this  point.  In  1.  IV,  Dist. 
XXVI,  qu.  3,  he  acknowledges  that  it  is  absolutely  necessary  to  admit  €  that  > 

marriage  is  a  sacrament, since  the  Church  declares  it  to  be  so  ».  He  is  at  varian- 
ce with  his  contemporaries  only  in  holding  that  the  sacrament  of  matrimony 
is  not  altogether  uni vocal  with  the  other  sacraments.  Cf.  Sasse,  o.  c,  p.  366. 

3.  The  Nestorian  formula  of  1553  reads :  «  We  believe  also  in  Holy  Baptism,., 
and  in  Holy  Priesthood,  and  in  Matrimony  ».  Simon  Assemanus  bears  witness 
to  the  belief  of  the  Jacobites  and  the  Copts  :  «  Ad  sacramenta  quod  spectat, 
septenarium  eorum  numerum,  qualis  ab  Ecclesia  Catholica  agnoscitur,  apud 
Jacobitas  sacrosanctum  esse  liquet  ex  eorum  ritualibus  ..  ».  Vartanus,  Bishop 
of  the  Armenians,  makes  the  same  statement  on  behalf  of  his  co-religionists,  two 
centuries  before  the  Council  of  Florence.  In  the  case  of  the  Orthodox  Greeks, 
there  is  no  lack  of  documents.  One  of  the  principal  of  these  is  the  profession  of 
faith  of  the  Patriarch  Jeremias,  of  1576.  The  violent  opposition  experienced  by 
Cyrillus  Lukaris,  a  partisan  of  the  Protestant  sacramental  system,  is  of  equal 
significance  ;  as  well  as  the  profession  of  faith  of  1643.  Finally,  in  the  rescript 
published  by  the  Patriarch  Anthimus  against  the  Encyclical  Praeclara,  of  Leo 
XIII,  there  is  not  the  slightest  protest  against  the  sacramental  dignity  of  mar- 
riage, or  against  the  septenary  number. See  Palmieri,  o.c,  p.  511 ;  Pohle.  Lcrh- 
buch  der  Dogmatik,  Padcrborn,  1906,  t.  Ill,  p.  395  s.;  Pourrat,  o.  c,  p.  353-367. 


l66  THE  SACRAMENT  OF  MARRIAGE 

after  the  separation.  We  must,  therefore,  go  back  to  the  ninth 
century  tor  the  Orthodox  Greeks,  and  to  the  fifth  century  for  the 
rest ;  whence  we  may  well  conclude  that,  in  the  fifth  centur}^  the 
doctrine  of  the  sacramental  character  of  matrimony  was  held  by 
the  Church  both  in  the  East  and  West. 

Furthermore,  it  is  hard  to  explain  the  unanimity  of  belief  in 
the  Church  of  the  fifth    century  without  admitting  that    the 
doctrine  in  question  goes  back  to  apostolic  times.  Were  it  other- 
wise,  it  is  difficult  to  see  how  a  doctrine  of  such  importance 
could  have  been  introduced  into  the  entire  Church  without  con- 
troversy and  protest ;  but  of  this  there  is  no  trace  to  be  found.  (*) 
98, 
b)  directly,  by     B.  Directly,  by  evidences  and  writings  that  go  back  to  the  apostolic  age. 
evidences.  _,.,,.. 

Observe,  that  we  must  not  expect  to  find  m  the  early  writmgs 

of  the  Fathers  and  Doctors  of  the  Church,  that  explicit  and  clearly 
defined  assertion  of  the  sacramental  character  of  matrimony, 
which  appears  in  the  pages  of  later  theologians  when  they 
declare  it  to  be  an  efficacious  sign  of  grace. 

The  idea  of  a  sacrament  in  general  was  only  developed  by 
degrees  in  the  Church,  especially  as,  in  the  early  ages  it,  was 
not  customary  to  treat  of  the  sacraments  methodically  and 
systematically  as  at  the  present  day.  No  attempt  was  made  to 
formulate  a  generic  idea  of  a  sacrament  that  might  afterwards 
be  applied   to  each  in  particular  (*)  ;  but  from  the  beginning  a 


1.  So  Tbrtullianus,  De  Praescriptionibus,  c.  38  :  «  Ecquid  verisimile  est  ut 
tot  ac  tantae  (Ecclesiae)  in  unam  fidem  erraverint  ?...  Variasse  debuerat 
error  doctrinae  Ecclesiarum.  Caeterum  quod  apud  multos  unum  inveuitur, 
non  est  erratum  sed  traditum  ».  Ed.  Oehler,  Lipsiae,  1854,  II,  p.  35  s. 

2.  There  was  some  obscurity  and  ambiguity  as  to  the  meaning  ot  sacrament 
and  the  sacramental  doctrine  down  to  the  twelfth  century.  Thus  St.  Peter 
Damian  (t  1073),  Opera  omnia,  Cajetan's  ed.,  I,  Sermo  6g,  having  but  an  inexact 
and  incomplete  definition  of  a  sacrament,  reckons  among  them  the  dedication 
of  churches,  the  anointing  of  kings,  the  veiling  of  nuns,  and  the  like.  See, 
however,  the  scholia  of  Cajetan  on  this  passage,  p.  378  s,,  and  note  that  from 
this  confusion  in  enumerating  the  sacraments,  it  does  not  follow  that  there  was 
a  like  confusion  of  mind,  since  similar  mixed  series  occur  with  Doctors  later 
than  Peter  Lombard,  who  were  well  acquainted  with  the  septenary  number, 
and  elsewhere  accurately  and  explicitly  teach  that  there  are  seven  sacraments, 
giving  them  in  their  proper  order,  and  distinguishing  between  the  sacraments 
properly  so  called,  which  they  term  principal,  and  the  minor  sacraments  or 
sacramentals.  Cf.  Gillmann,  Die  Siebcnzahl  der  SakramenU  bet  den  Glossatoren 
des  Gratianischen  Dekrcts,  Mainz,  1909,  p.  30  ss. 


THE  SACRAMENT  OF  MARRIAGE  1 67 

sacrament  is  proposed  to  the  faithful  as  a  sacred  sign,  as  the 
sign  of  something  holy.  It  is  not  explicitly  declared  to  be  an  effica- 
cious sign,  but  at  the  same  time  it  is  not  put  upon  the  same  level 
as  ordinary  signs  ;  it  is  asserted  to  be  in  some  way  associated 
with  the  spiritual  gift  of  grace  ('). 

It  is  not,  therefore,  surprising  that,  in  ancient  writings,  the 
sacramental  character  of  marriage  is  not  found  set  forth  in  explicit 
terms,  and  with  all  the  scholastic  precision  of  later  times  ;  never- 
theless, it  is  implicitly  contained  therein.  These  ancient  writers 
describe  marriage  as  a  holy  thing,  to  be  consecrated  by  the  rites 
of  religion,  a  ceremony  vivified  by  grace,  and  so  forth,  as  we 
shall  presently  show.  The  evidences  are  for  the  most  part  obscure 
and  confused,  but  they  must  be  interpreted,  as  Sasse  very  right- 
ly remarks  (^),  c  by  the  light  of  later  writings  which,  while 
making  clear  their  true  Catholic  meaning,  introduce  no  innov- 
ation into  dogma,  but  rather  afford  an  explanation  and  develop- 
ment of  primitive  belief  »  ('). 

As  concerns  the  Doctors  who,  in  the  early  and  latter  part  of  the  twelfth 
century,  were  the  first,  in  a  clear  form  and  in  an  exclusive  list,  to  teach  that 
the  sacraments  are  seven  in  number  and  neither  more  nor  less,  cf.  Gillmann, 
o.  c;  De  Ghellinck,  A  propos  de  quelques  affirmations  du  nombre  sepUnaire  dcs 
sacrements  au  X lie  Steele,  in  Reclterclies  de  Science  religieuse,  I  (1910),  p.  493  ss.; 
PouRRAT,  o.  c,  p.  332-267  ;  De  Bil,  U attestation  du  nombre  septenaire  des  sacre- 
ments chez  Gregoire  de  Bergame,  in  the  Revue  des  sciences  philosophiques  et  theologi- 
ques,  1912,  p.  332  ss.;  Heyer,  Theolog.  Revue,  1912,  p.  189  ss.  The  first  Conciliar 
text  setting  forth  the  exclusive  list  of  the  seven  sacraments  is  that  of  the  Synodus 
Londinensis  (1237).  ^f-  Schanz,  Die  Lehre  von  der  hi.  Sakramenten  der  kath. 
Kirclie  Freiburg,  i.  B.,  1893,  p.  81. 

1.  For  the  evolution  of  the  notion  of  sacrament,  cf.  Pourrat,  o.  c,  p.  3-42  ; 
Meersboom,  Le  developpement  du  dogme  et  le  dogme  du  nombre  septenaire  des 
sacrements,  N.  R.  th.,  1910,  p.  607  ss. 

2.  O.  c,  II,  p.  366. 

3.  Many  dogmas  of  the  primitive  Church  were  known  to  the  faithful  only  in 
an  obscure  and  uncertain  manner,  and  many  were  only  implicitly  believed  in 
the  beginning ;  but  by  a  gradual  and  continous  advance,  little  by  little  they 
came  to  a  more  explicit  knowledge,  so  that,  as  Vincent  of  Lerins  remarks : 
«  Quod  antea  simpliciter  credebatur,  hoc  idem  postea  diligentius  crederetur  ; 
quod  antea  lentius  praedicabatur,  hoc  idem  postea  instantius  praedicaretur  ». 
On  ihe  development  of  dogmas  consult  the  Diet,  de  Theol.  Cath.,  under  Dogme  ; 
and  the  Revue  du  Clerge  fr.,  t.  LXIV,  p.  456  s.,  and  see  what  is  said  ibid.,  p. 
448  ss.,  of  the  not  ver>'  praiseworthy  work  of  Lbpicier,  De  Stabilitate  et  pro- 
gressu  dogmatum,  2°^  ed.,  1910. 


l68  THE  SACRAMENT  OF  MARRIAGE 

For  the  rest,  even  if  one  regarded  the  silence  or  doubtful  utter- 
ances of  some  ancient  writers  as  indicative  of  their  ignorance  of 
the  sacramental  dignity  of  marriage,  it  would  be  unreasonable  to 
infer  therefrom  that  marriage  was  not  in  the  full  sense  instituted 
by  Christ  as  a  sacrament. 

The  fact  that  Christ  directly  instituted  the  sacrament  of  matri- 
mony is  quite  compatible  with  the  later  development  of  the 
knowledge,  and  especially  of  the  precise  and  reflex  knowledge,  of 
the  fact ;  nor  is  there  any  reason  why  the  early  Christians  should 
not  have  received  the  sacrament  of  marriage  without  being  con- 
scious of  its  sacramental  dignity  (*). 

It  is  needless,  therefore,  to  follow  in  the  footsteps  of  certain 
modern  writers,  and  have  recourse  to  the  theory  of  the  mediate 
institution  of  some  of  the  sacraments,  and  of  the  sacrament 
of  marriage  in  particular,  as  if  Christ  had  not  personnally  insti- 
tuted this  sacrament,  but  had  given  to  the  Church  a  mandate 
to  do  so,  when  the  occasion  arose  (').  "We  may  say  the  same 
of  the  theory  of  implicit  institution  advanced  by  Pourrat,  o.  c, 
p.  274,  who  broaches  the  opinion,  that  while  all  the  sacraments 
were  immediately  instituted  by  Christ,  some  of  them,  as  matri- 
mony, <  were  not  given  to  the  Church  fully  constituted  ». 

Now  let  us  turn  to  the  Fathers,  the  Rituals,  and  the  icono- 
graphic  monuments. 
The  witness  1 .  The  writings  of  the  Fathers  as  well  as  those  of  other  eccle- 
Fathcrs  ;  ciastical  writers,  even  the  most  ancient,  not  only  speak  of  mar- 
riage as  a  sacrament,  but  moreover  insist  on  its  holiness, 
on  the  special  blessing  that  Christ  has  bestowed  upon  it,  on 
the  necessity  of  contracting  it  in  a  holy  and  religious  manner 
before  the  Church,  and  on  the  special  dignity  peculiar  to 
Christian  marriage,  differentiating  it  from  the  marriages  of 
infidels.  From  the  same  writings  we  may  further  infer  that 
marriage  is  accompanied  by  grace. 

I.  r  Ce  qui  a  pu  s'ajouter  dans  la  suite  des  si^cles  k  ce  sacrement  (de  mariage), 
ce  n'est  pas  une  institution  plus  explicite,  ni  le  fait  que  ce  sacrement  aurait  ete 
plus  tard  pleinement  constitu^,  ce  ne  peut  etre  qu'une  connaissance  plus  explicite 
de  ce  que  le  Christ  avait  implicitement  revele  ».  Van  der  Heeren,  in  the  Revm 
d'HistoireeccUs.,  1907,  p.  803  ;  Cf.  Collat.  Brug.,  t.  XVI,  p.  643. 

3.  Cf.  De  Baets,  Revue  Thomiste,  1907,  pp.  31  ss. ;  cf.  Collat.  Brug.,  t.  XVI, 
p.  638  ss. 


99. 


THE  SACRAMENT  OF   MARRIAGE  l6g 

St.  Augustine  speaks  of  it  thus  :  «  Our  Lord,  when  invited,  came  to 
the  marriage,  that  conjugal  chastity  might  be  strengthened  thereby, 
and  the  sacrament  of  marriage  shown  forth  >  (').  Again  :  «  The  good 
that  marriage  procures  for  all  nations  and  for  all  mankind,  consists 
in  the  propagation  of  the  species  and  conjugal  fidelity  ;  but  beyond 
this,  for  the  people  of  God,  the  holiness  of  the  sacrament  which  renders  it 
unlawful,  even  on  repudiation,  to  marry  another...,  just  as  when  a 
priest  is  ordained  for  the  gathering  of  the  people,  even  if  no  gather- 
mg  of  the  people  follow,  nevertheless,  in  those  thus  ordained  the 
sacrament  of  Order  remains  »  (*).  And  finally  :  «  Without  a  doubt, 
the  peculiar  property  of  this  sacrament  is  to  unite  a  man  and  a 
woman  for  life,  indissolubly,...  as  long  as  they  live  the  conjugal  bond 
unites  them,  which  neither  separation  nor  intercourse  with  another 
person  can  remove,...  just  as  the  soul  of  an  apostate,  repudiating,  as 
it  were,  its  marriage  with  Christ,  even  after  the  loss  of  faith,  does 
not  lose  thereby  the  sacrament  of  faith  that  it  received  at  the  bap- 
tismal font  »  (^). 

St.  Cyril  of  Alexandria  (f  444) :  «  Our  Saviour  came  to  the  wedd- 
ing, not  so  much  to  assist  at  the  festivities,  as...  to  signify  the 
principle  of  human  generation...  ;  for,  it  was  becoming  that  He,  who 
was  to  renew  the  very  nature  of  man,  should  impart  his  blessing  not 
only  to  those  who  were  already  born,  but  that  He  should  also  pre- 
pare his  grace  in  advance  and  sanctify  the  birth  of  those  who  were 
yet  to  be  born  »  (*). 

St.  Epiphanius  (f  403)  :  «  Christ  seems  to  me  to  have  been  invited 
for  two  purposes  :  firstly,  in  order  that...  He  might  restrain  the 
voluptuousness  of  men  by  the  chastity  and  honour  of  marriage  ;  and 
secondly,  that  He  might  make  good  what  was  wanting,  and  satisfy  it  with 
the  sweetness  of  a  most  delightful  wine  and  with  his  grace  »  (*). 

St.  Innocent  (f  417)  :  <  Supported  by  the  Catholic  faith,  we  declare 
that  marriage  is  that,  which  from  the  beginning  was  established  by 
divine  grace  »  (*). 

Pope  SiRicius  (f  398)  admonishes  the  faithful,    that  €  the  sin,  which 


I.  In  Johan.,  tr.  IX,  no  3.  Mignc,  XXXV,  col.  1459. 

3.  D6  Bono  conjugali,  cap.  XXIV,  n"  33.  Migne,  XL,  col.  394. 

3.  De  nupt.  et  concup.,  1.  I,  cap.  10.  Migne,  XLIV,  col.  420. 

4.  In  Johan.,  II,  1-4.  Migne,  LXXIII,  col.  333. 

5.  Haeres.y  LI,  n"  30.  Mignc,  XLI,  col.  943. 

6.  Epist.  XXXVI  ad  Probum.  Migne,  XX,  col.  603  ;  Hardouin,  o.  c,  I,  col. 
1008. 


170  THE  SACRAMENT  OF  MARRIAGE 

violates  the  blessing  given  by  the  priest  to  the  bride,  is  like  to  a 
sacrilege*  (*). 

St.  Ambrose  (f  397)  :  «  We  know  that  God,  as  the  Lord  and  guard- 
ian of  marriage,  does  not  suflfer  that  nuptial  bed  should  be  profaned 
by  a  third  person,  and  that,  if  one  should  do  so,  he  sins  against  God, 
whose  law  he  violates,  and  of  whose  grace  he  deprives  himself.  He 
who  sins  in  this  way  against  God,  loses  the  benefit  of  the  heavenly 
sacrament  »  («). 

In  the  work  entitled,  Testamentum  d.  n.  j.  ch.,  Ed.  Rahmani,  1.  II, 
c.  I,  p.  113,  we  read  :  «  Let  him  (who  desires  to  marry)  marry  a 
faithful  Christian,  the  daughter  of  Christian  parents,  who  knows  how 
to  preserve  her  husband  in  the  faith  ;  (and  let  it  be  done)  as  the 
Bishop  shall  direct  and  ordain  ». 

Origen  (f  about  253)  :  «  Since  God  is  the  author  of  the  (marriage)  union, 
those  who  are  united  by  Him  are  the  recipients  of  his  grace  »  (s). 

Tertullian  (born  about  160)  :  «  How  shall  we  describe  the  happiness  of 
that  marriage, which  the  Church  unites,  the  offering  (oblatio)  confirms,  the 
blessing  seals,  the  angels  proclaim,  and  the  Father  ratifies  »  (*).  And  again  : 
«  If  then,such  a  marriage  is  ratified  by  God, why  should  it  not  prove  a  happy 
one,  so  as  not  to  be  unduly  harrassed  by  troubles,  anxieties,  obstacles  and 
faults,  since  it  has  in  part  the  protection  of  divine  grace  .''  >  {^). 

St.  Clement  of  Alexandria  (born  about  150)  :  «  Marriage  is  holy  ;  the 
Apostle  ascribes  this  mystery  to  Christ  and  to  the  Church  »  (*). 

St.  Ignatius  Martyr,  (f  about  107)  :  «  It  is  becoming  that  marriage 
should  be  contracted  with  the  advice  of  the  Bishop,  so  that  the  marriage 
may  be  according  to  the  Lord,  and  not  according  to  concupiscence  »  ('). 

Lastly  we  have  the  well  known  testimony  of  Saint  Paul  (Eph.,  V,  22-32), 
who  speaks  of  marriage  as  a  great  sacrament,  lauarnpiov  \xi-^a.  (»),  that  is  to 
say,  a  great  sign  or  symbol  representing  the  union  of  Christ  with  the 


1.  Epist.  I  ad  Himerium  Episcopum  Tarrac,  c.  4.  Migne,  XIII,  col.  1136  s. ; 
Hardouin,  o.  c,  I,  col.  848. 

2.  De  Abraham,  1.  I,  c.  7.  Migne,  XIV,  col.  443. 

3.  Comment,  in  Matth.,  t.  XIV,  no  16.  Migne,  XIII,  col.  1330. 

4.  Ad  uxorem,  1.  II,  c.  Ed.  Oehler,  Lipsiae,  1853. 

5.  Ibid.,  1.  II,  c.  7,  same  edition. 

6.  Strom.,  1.  Ill,  c.  13.  Migne,  VIII,  col.  n86. 

7.  Ad  Polyc,  c.  V,  no  3.  Ed.  Funk.  See  Sohm,  Das  Recht,  p.  108. 

8.  Protestant  interpreters  have  both  the  text  and  the  context  against  them;  for, 
both  refer  the  word  sacramentum,  not  to  Christ  and  the  Church,  but  to  Christian 
marriage,  and  an  exact  translation  of  the  Greek  would  require,  not  the  ablative, 
in  Christo  et  Ecclcsia,  but  the  accusative,  in  (ei?)  Christ«m  et  Ecclesiaw ;  i.  e.,  it 
is  a  mystery  or  sacrament  in  relation  to  Christ  and  the  Church. 


THE  SACRAMENT  OF  MARRIAGE  171 

Church  («).  This  text,  it  is  true,  does  not  explicitly  attribute  to  marriage  the 
efficacious  sign  of  grace,  but,  according  to  the  words  of  the  Council  of 
Trent,  Sess.  XXIV,  it  clearly  insinuates  it. 

Saint  Paul's  purpose  in  this  passage  is  to  explain  the  analogy  that  exists 
between  marriage  and  the  union  of  Christ  with  the  Church.  Now,  accord- 
ing to  his  teaching,  the  union  of  Christ  with  the  Church  is  of  such  a  kind 
that  the  bride  is  therein  sanctified  and  purified  by  grace  ;  consequently 
marriage  ought  also  to  bring  to  those  united  in  its  bonds  a  supernatural 
sanctification  and  purification.  Marriage  must,  therefore,  be  no  mere  sym- 
bol, but  a  sign  that  sanctifies  efficaciously  (*). 

2.  In  the  Rituals,  various  extracts  from  which  are  eiven  by    titewitncss 
Martene,  o.  c,  L.  I,  P.  2,    we   find  prayers  in  which  marriage 

is  set  forth  as  a  holy  thing  to  be  treated  in  a  holy  manner,  and 
in  which  God  is  prayed  to  fill  with  grace  the  union  that  He 
has  designed  (p.  614) ;  to  pour  forth  upon  his  servants  the 
abundance  of  his  blessings,  «  that  in  their  marriage  husband  and 
wife  may  be  united  in  equal  affection,  in  like  mind,  and  in 
mutual  holiness  >  (ibid.)  ;  «  to  fill  the  wedded  couple  with 
spiritual  blessings  for  the  remission  of  their  sins  and  for  the 
attainment  of  eternal  life  >  (p.  614  and  621).  God  is  there 
invoked  as  He  «  by  whom  the  woman  is  joined  to  the  man, 
and  at  whose  hands  the  married  life,  established  from  the 
beginning,  receives  that  blessing  which,  alone,  has  not  been 
taken  away  either  by  the  punishment  of  original  sin,  or  by 
the  judgment  of  the  deluge  »  (p.  619)  ;  there  our  Lord  is 
praised  for  having,  by  his  grace,  in  a  wonderful  way  dis- 
posed that,  «  what  generation  produces  for  the  population  of 
the  world,  regeneration  turns  to  the  increase  of  the  Church  » 
(p.  622). 

3.  In  the  iconographic  monuments,  marriages  are  represented    and  of  the 
as  religious  rites,  blessed  by  the  Church  and  sanctified  by  the  ^m^mnlnts. 
presence   of  Our  Lord.  Thus  sometimes   the   bride  and  bride- 
groom  bear  in    their  joined  hands  the   monogram  of  Christ  ; 


1.  A  mystery  is  called  a  sign,  especially  when  it  has  reference  to  something 
else,  as  in  the  present  instance.  The  mystery  here  relates  to  the  union  of  Christ 
with  the  Church,  as  is  shown  by  the  preceding  context,  and  particularly  by  the 
allegory  of  the  head  and  the  members. 

2.  Cf.  Vlaming,  o.  c,  I,  no  105,  who  develops  this  argument  more  at  length. 
See  also  Pohlb,  o.c,  III,  p. 593  s.  ;  Sasse,  o.c,  p.  369  ss. ;  Schanz,  o.c,  p.7i8ss. 


172 


THE  SACRAMENT   OF   MARRIAGE 


lot. 

Grounds  of 
congruity. 


Objection. 


sometimes  Christ    is  represented  as  blessing   them,  or  placing 
crowns  upon  their  heads  (*). 

The  doctrine  of  the  sacramental  character  of  matrimony  may  be  fur- 
ther strengthened  on  grounds  of  congruity,  as  St.  Thomas  suggests  («), 
inasmuch  as  the  sacrament  of  matrimony  serves  to  perfect  a  man  in 
the  spiritual  life,  in  a  manner  analogous  to  that  in  which  he  is  per- 
fected in  the  physical  life.  For,  as  in  the  physical  life  there  are  different 
degrees  of  perfection  for  which  provision  must  be  made,  so  in  the  spiritual 
life  there  are  corresponding  degrees  of  perfection,  for  which  it  is  con- 
gruous that  a  particular  sacramental  grace  should  be  provided. 

As  the  holy  Doctor  says  :  «  in  the  physical  life  the  perfection  of  the  indi- 
vidual is  two-fold,  as  it  regards  his  own  person,  and  the  whole  social 
community  in  which  he  lives,  for  man  is  naturally  a  social  animal...  In 
relation  to  the  whole  community  man's  perfection  is  again  two-fold  :  as  he 
receives  the  power  of  ruling  others,  and  acting  in  a  public  capacity,  the 
correlative  of  which  in  the  spiritual  life  is  the  sacrament  of  Order...  ;  and 
as  to  the  natural  propagation  of  the  species,  which  is  effected  by  matri- 
mony, both  in  the  physical  and  spiritual  life,  since  it  is  not  only  a 
sacrament,  but  an  office  of  nature  » . 

To  the  objection  made  against  the  sacramental  character  of  marriage, 
that  it  does  not  produce  what  it  signifies,  viz.,  the  union  of  Christ  with  the 
Church,  we  reply  that,  in  accordance  with  the  teaching  of  St.  Thomas  ('), 
we  may  distinguish  in  the  sacraments  a  two-fold  signification  :  in  the 
first  place  they  represent  that  which  they  contain,  that  is  to  say,  the  grace 
that  they  signify  and  at  the  same  time  produce ;  but,  in  addition  to  this, 
they  may  represent  something  which  they  neither  contain  nor  produce. 
It  is  in  this  way  that  the  union  of  Christ  with  the  Church  is  symbolised, 
but  not  produced  by  the  marriage  rite ;  just  as  the  baptismal  ablution, 
besides  being  a  sign,  represents,  without  containing  or  producing  them, 
the  burial  and  resurrection  of  Our  Lord. 


I.  Cf.  Martigny,  Dictionnaire,  under  Mariage  chretien,  p.  388 ;  Marrucchi, 
o.  c,  p.  10  ss,  ;  Armellini,  o.  c,  p.  369.  These  two  last  named  authors  give  a 
detailed  account  of  a  funeral  monument,  ascribed  to  the  fourth  century,  and 
discovered  in  the  Villa  Albani.  On  this  monument  Christ  is  represented  as 
placing  crowns  upon  the  heads  of  the  husband  and  wife. 

a.  P.  m,  qu.  LXV,  art.  i. 

3.  Billot,  o.  c,  I,  p.  23  s. 


THE  SACRAMENT  OF  MARRIAGE  173 

Chapter  II. 

CONNECTION  BETWEEN  THE  CONTRACT  AND 
THE  SACRAMENT. 

Proposition.    In  the  marriage    of  Christians,    there  is  no    real   The  sacra- 
distinction  between  the   contract   and  the  sacrament    of  matrimony,  '"^nylslhe' 

but  only  a  logical  distinctiojt.  Thus  the  one  is  inseparable  from  the  ^^'"^  »s  *** 
,     ,  -         ,      .  .  .         .   ,  ,  contract  of 

other,  and  there  cannot  be  a  legitimate  matnmontal  contract  between  marriage  oe- 

baptized  persons,  which  is  not  at  the  same  time  a  sacrament.  *^'^^ans 

Demonstration . 

The  contract  of  marriage  itself  has  been  raised  to  the  dignity  of  Proof  : 
a  sacrament.  Assuredly,  if  Christ  took  the  Christian  contract 
itself,  and  invested  it  with  the  sacramental  dignity,  it  is 
obvious  that  the  contract  and  the  sacrament  are  one  and  the 
same  thing,  that  there  is  only  a  logical  distinction  between 
them  (cum  fundamento  in  re),  and  that  consequently  they  are 
inseparable  from  one  another. 

This    co7isequence  is    strongly   insisted  on  by    the    Sovereign  by  tJte  cUva- 
Pontiffs.    Pius  IX,   in  his  allocution   of  27    Sept.  1852,   on    ^^^  contractu)  tin 
ecclesiastical  affairs  of  the  Republics  of  New  Granada  (Colom-  dignity  of  a 
.  .   .  ,     ,  •         1^      ,  >T      /"»     ,     1-      •  sacrament. 

bia),   expressed    himself   thus   :   «    No  Catholic   is    or  can    be 

ignorant  that  marriage  is  really  and  properly  one  of  the  seven 
sacraments  of  the  evangelical  law,  and  that  consequently  there 
cannot  be  among  the  faithful  any  real  marriage  that  is  not 
at  the  same  time  a  sacrament  ;  that,  accordingly,  among 
Christians  any  other  than  the  sacramental  union,  no  matter 
how  sanctioned  by  the  civil  law,  is  nothing  but  a  scandalous 
and  fatal  concubinage  most  strongly  condemned  by  the  Church  ; 
and  therefore  that  the  sacrament  can  never  be  separated  from 
the  matrimonial  compact...  »  (').  In  like  manner,  Leo  XIII, 
in  his  Encyclical  Arcanum,  says  it  is  certain,  that  «  in 
Christian  marriage,  the  contract  is  not  separable  from  the  sacra- 
ment ;  no  real  and  legitimate  contract  is  possible,  which  is 
not  by  the  very  fact  a  sacrament.  For,  Christ  has  raised 
marriage  to  the  dignity  of  a  sacrament   ». 


I.  Denzinger,  o,  c,  no  1766. 


174  THE  SACRAMENT  OF  MARRLAGE 

A  number  of  ecclesiastical  documents  provide  us  with  a  proof 
that  Christ  did  really  raise  the  matrimonial  contract  to  the  rank 
of  a  sacrament.  We  find  there  the  sacramental  dignity  clearly 
ascribed  to  the  contract,  that  is  to  say,  to  the  marriage  itself, 
such  as  it  exists  in  its  natural  character.  Thus  notably  the  Coun- 
cil of  Trent,  Sess.  XXIV,  Docirina  dc  sacr.  matr.,  et  can.  i,  simply 
states,  without  restriction,  that  marriage  is  a  sacrament ;  and 
comparing  marriage  in  the  Old  and  the  New  Law,  it  declares  that 
the  only  difference  between  them  is  this,  that  the  latter  is  supe- 
rior to  the  former  in  virtue  of  the  sacramental  grace.  Moreover, 
what  Christ  raised  to  the  rank  of  a  sacrament,  is  that  which, 
before  Him,  was  but  a  mere  figurative  sign  of  his  union  with  the 
Church,  that  is  to  say,  the  contract  of  marriage.  Finally,  in  the 
Syllabus  of  Pius  IX,  n°  65,  it  is  laid  down  in  express  terms,  c  that 
Christ  raised  marriage  to  the  dignity  of  a  sacrament  ».  Denzin- 
GER,  o.  c.  n"  1769.  Leo  XIII  speaks  to  the  same  effect  in  the 
passage  quoted  above. 

Errors  opposed  to  this  doctrine  : 
f03.  ^^ 

Refutation  of     1 .  J^.  Nep.  Nuyiz  taught  the  complete  distinction  between  the 

of^Nwiz     contract  and  the  sacrament,  asserting  that  «  the  sacrament  of 
marriage  is  only  an  accessory  to  the  contract....  and  that  sacra- 
ment has  its  place  only  in  the  nuptial  blessing  »  (*). 
of  Mehhior       2.  A  second  opinion,  maintained  by  EsTius,  in  1.  IV  Sent.,dist. 
Cams,      XXVI,  §  10  s.,   following  Melchior    Canus,    Opera   Theologica, 
Romae,   1900,   tom.  II,  cap.  VIII,   held  that   the   sacrament  of 
matrimony  is  constituted  by  the  contract,  as  the  matter,  and  by 
the  blessing  of  the  priest,  as  the  form,  in  such  a  way  that  there 
is  an  incomplete  distinction  between  the  contract  and  the  sacra- 
ment, as  between  the  part  and  the  whole.  This  opinion  is  fully 
refuted  by    Bellarmine,   De  controversiis  Christ,  fidei,  1.  unico, 
de  Matrimonio,  cap.  VI -VIII. 
of  Billuart,       3.  A  third  opinion  is  that  of  the  Salmant.,  o.  c,  Tract.  XI, 
and  others.    ^^^^  jjj^  ^^  ^^  ^^  ^^q^  .  ^^  CARRIERS,  o.  c,   p.  93  s.  ;   of  Pontius, 

o.  c,  1.  I,  c.  IX,  n.  1-6,  and  of  Billuart,  Summa  S.  Thomae,  in 
S*"  P.,  tom.  VI,  Dist.  I,  art.  V,  sub  5°.  They  admit  that  where 
there  is  a  sacrament,  there  is  always  a  contract,  and  that  then 


z.  Dbnzinqbr,  o.  c,  no  1766. 


THE  SACRAMENT  OF  MARRIAGE  175 

they  are  identical  ;  but  they  deny  that  where  there  is  a  con- 
tract between  Christians,  there  is  always  essentially  and  neces- 
sarily a  sacrament.  Thus  the  Salmant.,  1.  c,  n°  78,  teach  :  «  I 
reply,  therefore,  that  marriage  between  Christians  is  still 
separable  from  the  sacrament  ;  and  consequently,  if  one  intend- 
ed to  contract  civilly,  and  through  ill  will,  ignorance,  or 
error,  did  not  intend  to  receive  the  sacrament,  the  marriage 
would  be   valid  as  a  contract...  but  not  as  a  sacrament  »  (*). 

For  the  refutation  of  these  errors,  a  simple  knowledge  of  the 
Catholic  teaching  is  sufficient.  To  this  may  be  added  the  Church's 
condemnation  : 

The  error  of  Nuytz  is  condemned  in  the  Syllabus  of  Pius  IX, 
n°  66,  where  the  true  teaching  of  the  Catholic  Church  is 
declared  to  be,  that  the  sacrament  is  not  an  accessory  or  acci- 
dental addition  to  the  contract.  The  opinion  of  the  SaUnanticemes 
and  Billuari,  and,  a  fortiori,  the  doctrine  propounded  by  Melchior 
Canus  and  Estius,  are  rejected  in  the  same  Syllabus,  n°  73,  which 
condemns  the  following  proposition  :  «  In  virtue  of  a  purely 
civil  contract,  true  marriage  can  be  had  between  Christians  ; 
and  it  is  false  to  say  that  the  contract  of  marriage  between 
Christians  is  always  a  sacrament,  or  that  there  is  no  contract 
if  the  sacrament  is  excluded  »  (*). 

Objection.  The  authors  mentioned  above,  notably  Billuart,   appel  to  An  objection 
,  and  its  ans- 
wer. 

1.  Cf.  Billuart,  1.  c.  : «  In  raising  the  matrimonial  contract  to  the  dignity 

of  a  sacrament,  Christ  has  not  weakened  the  natural  efficacy  of  the  con- 
tract, but  only  added  to  it  a  supernatural  virtue,  just  as  in  giving  to  the 
baptismal  ablution  the  sacramental  character,  he  did  not  take  from  it  its 
physical  efficacy,  but  communicated  to  it  the  additional  supernatural  power  of 
cleansing  spiritually,  in  other  words,  of  sanctifying  ;  and  so  with  the  other 
sacraments.  Consequently  just  as  the  result  of  the  baptismal  ablution,  without 
the  intention  of  conferring  the  sacrament,  would  be  a  real  washing  of  the  body 
without  producing  the  sacrament,  so  he  who  contracted  marriage  without  the 
intention  of  receiving  the  sacrament,  would  make  a  real  and  valid  contract 
without  producing  the  sacrament,  because  intention  is  required  for  the  validity 
of  a  sacrament  ». 

2.  Denzingbr,  o.  c,  no  1766  and  1773.  In  the  Causa  Colonien.,  zy  Aug.  1910, 
(Acta  Ap.  Sedis,  1910,  p.  933),  the  S.  Rota  declared  that  the  doctrine  affirming 
the  impossibility  of  separating  the  matrimonial  contract  from  the  sacrament, 
concerns  faith  (fidei  proxima) ;  consequently  those  who  deny  it  come  very  near 
to  heresy  (haeresi  proximi). 


176  THE  SACRAMENT  OF  MARRIAGE 

the  sacrament  of  Baptism,  and  say  that  just  as  there  may  be  the  ablution 
without  the  sacrament,  e.  g.,  if  the  minister  has  not  the  intention  of  con- 
ferring it,  so  there  may  be  the  matrimonial  contract  between  Christi  ns 
without  the  sacrament,  with  those  who  intend  the  former  but  not  the 
latter. 

We  deny  the  parity.  Certainly  in  the  sacrament  of  Marriage,  as  in  that 
of  Baptism,  the  intention  to  perform  the  sacred  rite  is  requisite  on  the 
part  of  the  contracting  parties,  who  are  here  the  ministers  ;  but,  among 
Christians,  when  the  contract  is  intended,  the  sacrament  also  is  necessarily 
intended,  at  least  implicitly,  seeing  that  it  is  one  with  the  contract,  in 
consequence  of  the  elevation  of  the  latter  to  the  sacramental  dignity.  On 
the  other  hand,  one  can  perfectly  well  intend  the  ablution,  without  intend- 
ing the  sacrament  of  Baptism,  since  the  ablution  itself  is  not  the  sacra- 
ment ;  it  is  only  the  matter  of  the  sacrament,  of  which  the  invocation  of 
the  most  Holy  Trinity  is  the  form ;  hence  every  ablution  is  not  a  sacra- 
ment, but  only  that  to  which  the  minister  proceeds  in  due  form  and  with 
the  intention  of  administering  the  sacrament,  conditions  required  in  the 

case  of  every  sacramental  matter  and  form. 
405. 
Fate  of  the       Note.  EsMEiN,  o.  c,  II,  p.  160,  observes  that  the  incomplete  distinction 

Mick*^*^ r  between  the  contract  and  the  sacrament,  proposed  by  Melchior  Canus,  is 
nus.  contrary  to  the  primitive  teaching  :  «  c'^tait  la  tradition  ancienne  et  la 
doctrine  constante  des  canonistes,  qu'il  etait  impossible,  dans  le  mariage 
des  Chretiens,  de  separer  le  contrat  du  sacrement ;  que  le  contrat  lui-meme 
avait  ^te  elev6  par  la  nouvelle  loi  a  la  dignite  de  sacrement,  et  absorbe  par 
le  sacrement,  si  bien  qu'on  ne  pouvait  plus  concevoir  I'un  sans  I'autre  ». 
Elsewhere,  I,  p.  70  s.,  he  speaks  to  this  effect :  «  Ceux  qui  ont  imagine  la 
distinction,  ce  sont  les  theologiens...;  ce  qui  me  parait  avoir  donne  lieu  a  la 
distinction,  ce  sont  certains  cas  oii  les  canonistes  reconnaissaient  tradition- 
nellement  des  mariages  valables  entre  chr^tiens,  et  ou  les  theologiens  ne 
trouverent  pas  les  conditions  requises  pour  1 'existence  du  sacrement,  sp^- 
cialement  quant  k  la  forme  :  par  ex.  le  mariage  qu'un  muet  contractait  par 
signes,  le  mariage  contracte  par  procureur,  les  mariages  presumes  du  droit 
canonique.  Les  theologiens,  pris  de  ces  scrupules,  ne  pouvaient  abolir  la 
doctrine,  solide  et  constante  des  canonistes,  qui  reconnaissaient  la  validi- 
ty de  semblables  mariages ;  la  conclusion  k  laquelle  ils  furent  naturellement 
conduits  fut  de  declarer  que,  dans  ces  hypotheses,  le  mariage  des  chretiens 
^tait  bien  un  contrat,  mais  non  un  sacrement  » . 

This  opinion,  which  Melchior  Canus  supported  with  a  variety'  of  proofs, 
was  admitted  and  proposed  by  many  of  the  Fathers  at  the  Council  of 
Trent  ('),  the  more  readily  as  they  found  therein  an  easy  way  of  reconcil- 


I.  EsMSiN  gives  a  complete  list  of  the  Fathers  who  were  of  this  way  of  think- 


THE  SACRAMENT   OF  MARRIAGE  I77 

ing  with  the  substantial  immutability  of  the  sacraments  the  power  of  esta- 
blisliing  matrimonial  impediments,  and  especially  of  annulling  clandesti- 
ne marriages,  possessed  by  the  Church. 

At  a  later  date,  the  Galileans  abused  this  distinction  to  vindicate  the 
claim  of  the  civil  law  to  regulate  marriage  in  so  far  as  it  is  a  contract  (*). 
One  is  surprised  to  hear  Benedict  XIV,  De  Syn.  dioec,  1.  VIII,  c.  13, 
declaring  very  probable  the  opinion  that  teaches  this  distinction,  as  «  based 
on  very  solid  arguments  »  and  «  strengthened  by  the  support  of  so  many 
doctors*.  He  acknowledges,  however,  that  the  contrary  opinion  (n°4)is 
more  common ;  and  this  is  the  only  one  given  by  him  in  his  Apostolic 
letter  to  the  Archbishop  of  Goa,  of  19  March  1578,  (in  the  Collect. ,  n°  1301). 

Corollary  I.   Baptized   parties,  really  intending  to  make   the  Practkalcon- 

matrimonial  contract,  receive  at  the  same  time  the  sacrament.  If 

their  predominant  intention  was  to  exclude  the  sacrament  from 

the    contract,    not    only    would    there    be    no    sacrament,  but 

«  there  would  be   no  contract  either,  since  they  intended  this 

last,  only  under  an   impossible  condition  »,   viz.  the  separation 

from  the  sacrament.  Cf.  Theol.  Mechl.,  o.  c,  n"  27,  qu.  2. 

106. 
Corollary    II.  Wi^icn    unbaptized    persons,    united    in    lawful  Marriage  of 

marriage,  receive    baptism,   their  marriage  thereby  becomes  a  ^^g^^  becomes 

sacrament,  and  there  is  no  need  for  the  renewal  of  their  consent.     *  sacrament 
rrM     •  •  •  •  ,■   1  by  the  baptism 

Their  marriage  is  not  annulled  by  the  conversion  of  the  two  par-       of  both 

ties,  and  so,  being  valid,  it  necessarily  becomes  a   sacrament  ;      P^^t^s> 

consequently  it  matters  little  whether  they  have  renewed  their 

consent  or  not,  or  even  if  they  have  invalidly  revoked  it ;  for, 

between  baptized  persons,  there  cannot  exist  a  marriage  that  is 

not  at  the  same  time  a  sacrament. 

For  the  further  explanation  of  the  way  in  which  a  marriage  formerly 
contracted  becomes  a  sacrament  through  baptism,  it  is  sufficient  to  say 
that,  since  the  matrimonial  consent  virtually  perseveres  (*),  it  becomes  a 
sacrament  spontaneously  by  the  fact  of  the  baptism  of  the  two  parties,  just 
as  the  consent  that  was  previously  given   invalidly  and  still    virtually 


ing,  o.  c,  II,  p.  369,  according  to  Thbiner,  o.  c,  II,  p.  314  ss.;  but  there  are 
several  of  them  whose  words  may  easily  be  understood  in  the  sense  of  a  simple 
logical  distinction.  Among  these  may  be  mentioned  Didacus  de  Payva,  and  the 
Bishops  of  Lanciano,  Metz,  Orense,  and  Namur. 

I.  See  below,  n°^  226  and  227. 

3.  The  consent  is  considered  to  persevere,  even  when  the  parties  have  revoked 
it,  seeing  that  such  revocation  is  altogether  inoperative. 


178  THE  SACRAMENT  OF  MARRIAGE 

endures,  is  made  valid  by  a  sanatio  in  radice  (*).  Moreover,  there  is  cer- 
tainly no  reason  why  this  consent,  which  morally  perseveres  and  is 
outwardly  manifested  by  a  continuance  of  the  married  life  or  otherwise, 
should  not  constitute  the  sacramental  sign. 

It  follows  from  this  that  there  is  no  necessity  for  a  new  consent  to 
constitute  the  matter  and  form  of  the  sacrament,  as  some  contend.  Quite 
apart  from  the  fact  that  this  theory  of  the  necessity  of  a  renewal  of  consent 
is  irreconciliable  with  the  identity  of  the  contract  and  the  sacrament, 
the  renewed  consent  would  serve  no  purpose  :  it  could  not  constitute 
a  fresh  matrimonial  contract,  and  consequently  it  could  not  serve  as  a 
new  sacramental  sign;  since  the  marriage  contracted  in  infidelity  still 
remains  valid  (*). 

hut  not  of  one      Scholion.  In  the  hypothesis  that  one   only    of  the    parties  receives 
^'        baptism,  we  are  of  opinion  that  the  marriage  does  not  become  for  him  a 
sacrament. 

The  reason  of  this  is  that  it  is  impossible  that  the  marriage  bond  should 
be  sacramental  for  one  and  not  for  the  other ;  for  then,  by  reason  of  the 
sacrament,  this  bond  would  be  stronger  on  the  one  side  than  on  the  other  ; 
which  involves  a  contradiction. 

As  St.  Thomas  says  :  «  Marriage  {in  facto  esse)  is  a  relation,  and  every 
relation  is  mutual ;  consequently  that  which  puts  an  obstacle  to  marriage 
on  the  one  side,  is  equally  an  obstacle  to  it  on  the  other  ;  it  is  not  possible 
that  one  should  be  a  husband  without  having  a  wife,  or  a  wife  without 
having  a  husband,  just  as  there  is  no  mother  where  there  is  no  child.  This 
is  why  it  is  commonly  said  that  marriage  does  not  limp  »(^).  Billot  (*)  is 
yet  more  clear  :  «  As  it  is  impossible  that  conjugal  rights  should  affect  only 
one  of  the  parties,  so  also  it  is  impossible  that  the  obligation  of  the  husband 
with  respect  to  the  wife  should  be  stronger  than  that  of  the  wife  with 
respect  to  the  husband,  or  vice  versa  ». 

But  if  the  mariage  bond  cannot  be  sacramental  on  one  side  only,  the 
same  must  be  said  of  marriage  in  fieri,  that  is  to  say  of  the  giving  of  con- 
sent. For,  according  to  the  doctrine  which  we  shall  presently  set  forth, 
in  n°^  108  and  112,  on  the  subject  of  disposing  causality,   the  outward 


I.  Cf.  Leitner,  Lehrb.,  p.  66  s.,  and  below,  0°  408. 

a.  €  For,  as  Perrone  observes,  o.  c,  II,  p.  281,  what  has  once  been  given 
irrevocably  cannot  be  given  again  ;  but  it  is  thus  that  even  unbaptized  parties 
mutually  surrender  to  one  another  the  ownership  of  their  respective  bodies  by 
the  contract  of  marriage  ».  Cf.  also  Billuart,  1.  c. 

3.  Supplem.,  qu.  47,  art.  3. 

4.  0.  c,  II,  p.  357. 


THE  SACRAMENT  OF  MARRIAGE  179 

rite  becomes  the  sign  practically  signifying  grace  ;  only  by  means  of  the 
marriage  bond,  which  is  the  res  et  sacramentum  (*). 

If  the  line  of  argument  that  we  have  taken  is  adopted,  then  our  solution 
holds  good  not  only  for  the  hypothesis  in  question,  but  also  for  the  case 
of  a  marriage  contracted  by  papal  dispensation  between  a  Christian  and 
an  unbaptized  person,  so  that  even  then  the  marriage  does  not  limp  (*). 

Chapter  III. 

NATURE,  MINISTER,  EFFECT,  SUBJECT, 
CEREMONIES  OF  THE  SACRAMENT  OF  MATRIMONY. 

Article  1.  Nature  of  the  sacrament. 

I.  Meaning:. 

^  108. 

The  identity  established  above  between  the  Christian  contract    Meaning  of 

J   ,,  .L     r         i  •  -x  i.      J   ri         -i.    the  sacrament 

and  the  sacrament  oi  matrimony  permits  us  now  to  deiine  its  of  marriage. 

nature  and  its  constituent  elements. 

The  sensible  sign,  the  sacramentum  iantum,  is  here  the  mutual 
consent  of  the  parties.  This  consent  produces  the  sacramental 
bond  of  marriage,  which,  of  its  nature,  requires  a  special  grace 
for  the  faithful  discharge  of  the  duties  connected  with  it.  Un- 
doubtedly every  valid  matrimonial  contract  produces  this  bond 
of  marriage,  but  it  is  not  sacramental  in  marriages  between 
unbaptized  persons,  and  therefore  it  does  not  require  the  infu- 
sion of  a  sacramental  grace  (^). 


1.  Without  doubt  it  is  not  impossible  that  one  only  of  the  parties  should 
receive  the  sacramental  grace  in  marriage  ;  and  it  is  quite  natural  that  those 
who  hold  the  opinion  affirming  the  immediate  causality  of  the  sacraments,  who 
see  in  the  sacrament  only  the  sensible  sign  directly  conferring  grace,  without 
any  intermediate  effect,  should  take  advantage  of  this  to  oppose  our  theory,  as 
many,   indeed,   do. 

2.  There  are  not  wanting  authors  who  reject  this  last  opinion,  though  they 
are  in  agreement  with  us  as  to  the  first  hypothesis.  For  example,  Perrone, 
o.  c  ,  II  pp.  389-294  ;  Lehmkuhl,  in  his  note  on  Sasse,  o.  c,  II,  pp.  390-392, 
though  this  same  author,  in  the  Catholic  Encyclop.,  IX,  p.  713  s.,  appears  to 
favour  the  opinion  given  in  the  text. 

3.  For  the  better  understanding  of  this  idea  one  must  keep  in  view  the  gener- 
al theory  regarding  the  constitution  of  the  sacraments  and  their  causality.  We 
have  treated  of  this  at  length  in  the  Coll.  Brug.,  t.  Ill,  p.  517  ss.  See  also  below, 
no  113. 


l8o  THE  SACRAMENT  OF  MARRIAGE 

The  sacramental  bond  is  known  as  the  res  et  sacramentum ;  the 
special  grace,  to  which  it  gives  a  right,  as  the  res. 

II.  Matter  and  Form. 

409. 

Matter  and       The  proximate  ntaiter  and  the  form  of  the  sacrament  of  mar- 

F9rtn.  riage  are  deduced  as  a  corollary  from  the  definition  given,  and 
from  the  sacramental  character  of  the  contract,  as  Billuart 
clearly  teaches,  o.  c,  ad  Stippl.,  Dissert,  i,  art.  7  :  «  I  say,  the 
proxiniate  matter  of  the  sacrament  of  matrimony  is  the  words  of 
the  contracting  parties,  as  expressing  the  mutual  transfer  of  the 
right  of  ownership  over  their  respective  bodies  ;  the  form,  these 
same  words,  as  expressing  the  acceptance  of  this  transfer.  For 
the  words  :  /  take  you  for  wife,  I  take  you  for  husband,  signify  on 
each  side  not  merely  the  acceptance,  but  moreover  the  transfer 
of  personal  right  into  the  hands  of  the  other  party  ;  without 
which  there  would  not  be  any  marriage.  Consequently  the  same 
words,  looked  at  from  different  points  of  view,  are  the  matter 
and  form. 

Proof :  The  sacrament  of  matrimony  is  no  other  than  the  civil 
(natural)  contract  raised  to  the  dignity  of  a  sacrament,  without 
any  change  affecting  the  matter  or  form  ;  thus  the  matter  and 
form  of  the  sacrament  are  those  of  the  contract.  But  in  civil 
contracts,  and  consequently  also  in  the  matrimonial  contract,  the 
delivery  of  the  object  or  the  duly  manifested  consent  to  its  delivery 
serves  as  the  matter,  the  acceptance  or  duly  manifested  con- 
sent to  accept  serves  as  the  form.  To  prove  the  minor  :  The 
matter  is  the  determinable  element,  the  form  the  determinative... 
But  in  every  civil  contract,  the  delivery  of  the  object  is  the  deter- 
minable element,  and,  for  a  perfect  contract,  requires  comple- 
tion by  acceptance,  which  is  the  determinative  element.  The- 
refore... >  (*). 


I.  Bened.,  XIV,  Litt.  Ap.,  19  March  1758  {Collect. ,n°  1391,  p.  499),  teaches  the 
same  :  «  The  lawful  contract  is  at  the  same  time  the  matter  and  form  of  the 
sacrament  of  matrimony  :  namely,  the  mutual  and  lawful  transfer  ot  bodies... 
the  matter,  and  in  like  manner  the  mutual  and  lawful  acceptance  of  the  same, 
the  form  ».  For  other  views  see  Bened.  XIV,  De  Syn.  dioec.,  1.  VIII,  c.  XIII. 
no  3,  where  he  gives  the  different  opinions  ;  St.  Thomas,  in  IV  Sent.,  Dist. 
XXIV,  qu.  a,  a.  I ;  Sanchez,  o.  c,  1.  II,  Disp.  V,  nos  6-7 ;  Salmantcc,  o.  c,  Tr. 
IX.  c.  Ill,  dub.  II;  Suarez,  Disputationum  in  Tert.  Part.  S.  Thomae,  Tom.  III. 


THE  SACRAMENT  OF  MARRIAGE  l8l 

There  is  no  opposition  between  this  theory  and  the  doctrine  of 
the  Council  of  Florence,  which  teaches  that  the  mutual  consent 
is  the  efficient  cause  of  marriage  ;  for,  the  word  marriage  is  there 
used  in  the  sense  of  the  marriage  bond,  i.  e.,  of  marriage  in  facto 
esse,  of  which  the  consent  is  in  fact  the  efficient  cause. 

Article  2.  Minister  of  the  sacrament. 

Proposition.  The  contracting  parties  themselves  are  the  ministers  of 
the  sacrament. 

A.  Proofs  : 

1 .  The  first  and  principal  argument  is  drawn  from  the  identity  The  contract' 
of  the  sacrament  and  the   contract,   in  the  case  of  baptized  Y^^^'arethe^minis- 

sons  ;  from  this  identity  it  clearly  follows  that  the  parties  making     ^^^^  °f^^^ 
'  "  '^  sacrament. 

the  contract  produce  the  sacrament,  and  consequently  are  the 

ministers  of  it. 

2.  As  a  confirmation  of  this,  we  may  add  that  clandestine  mar- 
riages, contracted  by  the  parties  alone  and  without  the  presence 
of  a  third  person,  are  valid  of  themselves,  as  regards  both  the  con- 
tract and  the  sacrament  :  of  course,  in  so  far  as  they  are  not 
invalidated  by  the  Church  (').  Thus,  even  at  the  present  day, 
all  marriages  of  this  kind,  that  are  exempt  from  the  law  of  clan- 
destinity,  are  perfectly  valid. 

3.  Finally,  in  order  to  show  that  the  minister  of  this  sacra- 
ment is  neither  the  parish  priest  nor  the  delegated  priest,  whose 
presence  is  required  for  the  validity  of  marriages  subject  to  the 
law  of  clandestinity,  it  is  sufficient  to  turn  to  the  preparation  of 
the  decree  Tameisi  during  the  Council  of  Trent.  We  there  clearly 
see  that  the  office  of  the  priest  is  merely  that  of  an  authorized  wit- 
ness. In  fact,  the  first  two  propositions  submitted  to  the  Fathers  of 
the  Council  required  only  the  presence  of  any  three  witnesses 
whatsoever  ;  the  two  following  required  that  one  of  the  three 
witnesses  should  be  a  priest,  but  they  restricted  his  office  to  that 


Disp.  II,  sect.  I  ;   Bellarmine,  o,  c,  c.  6.  Palmieri,  o.c,   thesis  X,  sub  VII  ; 
Wernz,  o.  c,  no  /j7,  together  with  note  199. 

I.  «  Although  it  is  not  to  be  doubted  that  clandestine  marriages,  made  with  the 
free  consent  of  the  contracting  parties,  are  valid  and  true  marriages,  so  long  as 
the  Church  has  not  invalidated  them...  >.  Cone.  Trid.,  Sess.  XXIV,  c.  I,  Dc 
Reformatione  Matrimonii. 


l82  THE  SACRAMENT  OF  MARRIAGE 

of  a  simple  witness  ;  some  even  wished  to  substitute  a  notary  for 
him  ('). 

B.  Explanation. 

1.  Baptized  parties  bring  the  sacrament  into  being  by  the  self- 
same giving  of  consent  that  produces  the  contract  ;  and  the 
words  by  which  they  express  this  consent,  constitute  at  the 
same  time  the  matter  and  form  of  the  sacrament  :  the  matter, 
in  that  they  express  the  mutual  iransfer  of  the  right  of 
ownership  over  their  respective  bodies  ;  the  form,  in  that  they 
express  the  acceptance  of  this  transfer,  according  to  what  we  have 
said  above  in  art.  i. 

To  speak  precisely,  the  contracting  parties  discharge  the  office 
of  ministers  in  that  they  place  the  form  of  the  sacrament  ;  in 
other  words,  inasmuch  as  their  acceptance  ratifies  the  transfer  of 
ownership  made  by  the  respective  parties,  not  in  that  they  place 
the  matter  and  the  form  (^). 

2.  It  does  not  matter  if  the  parties  are  ignorant  of  their  ministe- 
rial office ;  «  for  by  the  very  fact  that  they  intend  to  contract 
marriage  in  accordance  with  the  divine  institution  and  the  prac- 
tice of  the  Church,  they  have  the  intention  of  doing  what  the 
Church  does,  that  is  to  say,  what  Christ  instituted  »  (').  But, 
apart  from  any  special  objection  to  such  a  course,  there  is  no 
reason  why  they  should  not  be  enlightened  on  this  subject,  what- 
ever some  writers  may  think  of  it.  Such  knowledge  is  of  a  nature 
to  increase  in  them  the  respect  due  to  the  sacrament,  and  to 
encourage  them  to  approach  it  more  worthily. 


I.  The  Holy  Synod,  according  to  the  first  formula,  c  ordained  and  decreed 
that  those  marriages  which  for  the  future  should  be  contracted  secretly,  without 
the  presence  of  three  witnesses,  should  be  invalid  and  null  ».  Theiner,  o.  c,  II,  p. 
314  ;  in  the  following  pages  he  gives  the  other  formulas  also.  See  too  Perrone, 
o.  c,  I,  p.  149-152 ;  EsMEiN,  o.  c,  II,  p.  155-169. 

3.  This  gives  us  an  opportunity  of  answering  a  possible  objection  to  the  effect 
that,  according  to  us,  Christ  himself  would  contract  marriage,  since  He  is  the 
principal  minister  of  the  sacrament,  and  that  therefore  to  Him,  as  the  principal 
agent,  the  action  of  the  ministerial  cause  must  be  attributed.  We  reply  that  the 
office  of  minister,  as  such,  is  confined  to  the  simple  ratification  of  the  mutual 
transfer,  and  that  it  is  not  unworthy  of  Christ,  in  His  sovereign  capacity,  to 
sanction  and  seal  the  marriage  bond. 

3.  Theol.  Mechl.,  o.  c,  no  30. 


THE  SACRAMENT  OF   MARRIAGE  183 

3.  In  marriages  contracted  by  proxy  or  through  an  interpreter, 
these  are  not  the  ministers,  but  only  the  principals  for  whom  they 
act(*). 

Note.  Melchior  Canus  is  the  principal  opponent  of  the  common  doctrine, 
and  he  holds  that  the  priest  is  the  minister  of  the  sacrament  of  matrimony. 
His  theory  is  a  logical  consequence  of  the  opinion  that  he  held  as  to  the 
incomplete  distinction  between  the  matrimonial  contract  and  the  sacra- 
ment, regardmg  the  contract  as  the  matter,  and  the  blessing  given  by  the 
priest  as  the  form. 

As  we  have  said  above,  n°  105,  one  is  surprised  to  find  Benedict  XIV, 
De  Synodo  dioeces.,  1.  VIII,  c.  13,  no*  2  and  4,  declaring  this  opinion 
solidly  established  and  verj'  probable  on  account  of  the  extrinsic  authority 
of  the  Doctors  favouring  it,  especially  William  of  Paris  and  Paludanus  (*), 

Corollary.  The  words  used  by  the  priest  in  blessing  the  marriage  :  /  Office  of  the 
join  you  in  niarriage,  in  the  name  of...,  do  not  constitute  in  any  "^^y  themarr^^e, 
the  form  of  the  sacrament,  nor  do  they  contribute  at  all  to  the  constitution 
either  of  the  contract  or  of  the  sacrament.This  is  clear  from  what  has  been 
said  above,  and  receives  confirmation  from  the  action  of  the  Council  of 
Trent  in  permitting  the  priest  to  use  other  words,  «according  to  the  receiv- 
ed rite  of  each  province  »  (^).  Moreover,  as  Martene  observes,  o.  c,  1.  I, 

1.  This  is  why,  in  marriages  of  this  kind,  the  principals,  that  is  to  say,  the 
real  contracting  parties,  must  have  at  the  moment  when  the  consent  is  given  by 
their  proxy,  and  when  consequently  the  sacrament  is  constituted,  at  least  a 
virtual  intention  of  contracting  marriage  and  receiving  the  sacrament,  and  a 
merely  habitual  intention  does  not  suffice,  as  Lehmkuhl  declares,  o.  c,  II,  no  49. 
The  intention  of  the  principal  virtually  perseveres  in  the  commission  previously 
given  by  him,  and  in  virtue  of  which,  consent  is  given  by  his  proxy ;  conse- 
quently it  matters  not  if,  at  the  moment  the  consent  is  manifested  and  the  sacra- 
ment constituted,  the  real  contracting  party  does  not  advert  to  it,  or  is  drunk, 
or  asleep,  or  even  temporally  insane.  See  the  solution  of  the  case  given  in  the 
Anal,  cccles.,  1901,  p.  430  ss.,  also  above,  no79. 

2.  The  like  doctrine  is  maintained  in  the  Tractatus  Tlieologiae  Naitceiensis,  to 
be  found  in  Migne,  Theologiae  Cursus  Computus,  tom.  XXV,  Paris,  1863,  col. 
790  ss.  There,  inter  alia,  appeal  is  made  to  the  decree  of  the  Council  of  Florence, 
in  which  it  is  taught  that  the  sacraments  are  constituted  by  words  as  the  form, 
while  the  contracting  parties  can  contract  marriage  hy  signs  of  assent ;  but  no 
attention  is  paid  to  the  fact  that  the  words  are  not  to  be  taken  too  literally,  and 
that  the  force  of  them  must  not  be  unduly  insisted  upon,  seeing  that  the  same 
decree  teaches  that  the  matter  consists  in  things  (rebus),  though  in  the  sacrament 
of  Penance  the  acts  of  the  penitent  constitute  the  matter. 

3.  Sess.  XXIV,  1.  c. ;  cf.  Bened.  XIV,  De  Syn.  dioec.,  1.  VIE,  c.  XUI,  no  6  : 
«  The  Church  would  not  have  tolerated  such  a  variety  of  formulas,  much  less 


184  THE  SACRAMENT  OF  MARRIAGE 

P.  2,  c.  IX,  art.  3,  these  words  were  not  used  in  former  times,  and  are  not 
found  in  the  ancient  rituals. 

The  words  pronounced  by  the  priest  signify  that  the  marriage  which  has 
just  been  contracted  is  ratified  and  solemnized  by  the  Church  through  his 
instrumentality,  and  this  is  clearly  shown  by  the  various  formulas  employed 
in  different  places  (*). 

Still  it  is  quite  intelligible  that  the  priest  should  often  be  spoken  of  as  the 
minister  of  the  sacrament  by  those  who  are  not  in  the  habit  of  speaking  in 
the  precise  language  of  theology.  For  he  is  the  authorized  witness  assisting 
at  the  marriage  in  the  name  of  the  Church ;  and  moreover  acts  as  the  minis- 
ter of  the  liturgical  rites  that  surround  the  sacrament,  as  it  occurs  in 
the  supplying  of  the  ceremonies  omitted  in  private  baptism. 

The  blessing  given  by  the  priest  is  a  sacramental  (sacramentale  quod- 
dam),  and,  being  given  in  the  name  of  the  Church,  it  is  efficacious  in  bring- 
ing down  the  blessing  of  God  upon  the  newly  married  pair. 

Article  3.  Effects  of  the  sacrament. 

Ejects  of  the      In  the   whole  of  this   section,  the  word  marriage  is  used  as 

sacramen  .  signifying  the  sacramenium  tantum,  i.  e.,  the  sensible  sign  ;  it 
accordingly  signifies  the  actual  consent,  and  not  iht  res  ct  sacra- 
menium, that  is  to  say,  the  conjugal  bond,  to  which  the  term 
sacrament  is  also  sometimes  applied  in  a  looser  sense. 

the  conjugal  The  first  effect,  the  res  et  sacramenium,  is  the  conjugal  bond, 
°^  '  whereby  husband  and  wife  are  united  and  associated  with  one 
another  as  a  common  principle  for  the  generation  and  education 
of  children  ;  this  bond  requires,  as  a  disposing  cause,  the  infusion 
of  the  sacramental  grace  (*).  It  lasts  until  dissolved  by  some  legi- 
timate cause,  e.  g.  by  the  death  of  one  of  the  parties. 

and  the  grace.  The  second  effect,  the  res,  in  the  grace  itself,  the  habitual  or 
sanctifying  grace  which,  in  so  far  as  it  is  peculiar  to  this  sacra- 
ment, gives  an  unfailing   right  to   those  abundant  actual  graces 


have  allowed  each  country  its  choice,  had  it  regarded  the  sacrament  of  marriage 
as  constituted  by  the  words  of  the  priest  ». 

1,  The  following  are  specimens  given  by  Perrone,  o.  c,  I,  p.  154 :  <  Therefore 
I  confirm,  ratify  and  bless  the  marriage  that  you  have  contracted,  in  the  name 
of  the  Father,  etc.  ».  «  May  God  confirm  the  marriage  that  you  have  contracted 
before  the  Church,  and  I,  by  the  authority  of  the  Church  of  God,  approve,  per- 
fect and  solemnize  it,  in  the  name  of  the  Father,  etc. 

2.  Concerning  the  nature  of  the  res  et  sacramentutn  and  its  relation  to  grace, 
see  the  Coll.  Brug,,  t.  Ill,  p.  518  ss. 


THE  SACRAMENT  OF  MARRIAGE  1 85 

that  enable  husband  and  wife  to  bring  up  their  children  in  holi- 
ness, to  dwell  together  in  peace,  and  duly  to  fulfil  the  other  duties 
of  their  married  state. 

The  grace  of  the  sacrament  is  of  itself  the  gratia  secund a,  since 
the  conjugal  bond,  whereby  husband  and  wife  become  a  principle 
for  the  procreation  of  offspring  to  the  multiplication  of  the  chil- 
dren of  God,  naturally  supposes  that  they  are  themselves  the 
children  of  God  through  grace.  Nevertheless,  under  exceptional 
circumstances,  marriage  confers  the. gratia  prima,  viz.,  in  the  case 
of  one  who  marries  in  a  state  of  grievous  sin  of  which  he  is 
unconscious,  but  who  has  at  least  habitual  attrition. 

The  first  effect  invariably  follows  the  valid  reception  of  the 
sacrament,  i.  e.,  the  valid  matrimonial  contract  between  baptized 
parties. 

The  second  is  produced  as  often  as  there  is  no  obstacle  in  the 
way  of  the  grace.  If  there  is  an  absolute  ohsia.c\e,  that  is  to  say, 
a  state  of  grievous  sin  that  is  conscious,  or  even  unconscious,  but 
with  a  habitual  attachm^ent  to  grievous  sin,  grace  is  altogether 
wanting,  and  the  sacrament  without  fruit.  If  there  is  a  relative 
obstacle,  the  sacrament  is  relatively  unfruitful. 

The  sacrament  of  marriage  received  validly,  but  unfruitfully, 
may  revive  during  the  persistence  of  the  res  ei  sacramentum  or 
sacramental  conjugal  union  ;  for  that,  it  is  necessary  that  the 
obstacle,  whether  absolute  or  relative,  should  be  removed. 

Observe  that,  while  the  sacrament  of  marriage  cannot  exist  in 
one  of  the  parties  without  at  the  same  time  existing  in  the  other, 
it  may  nevertheless  be  fruitful  for  the  one  and  unfruitful  for  the 
other  ;  and  in  like  manner  it  may  revive  for  the  one  without 
reviving  for  the  other. 

Article  4.  Subject  of  the  sacrament. 

//3 

I.  The  subjects  capable  of  receiving  the  sacrament  of  marriage  Capable  sub- 

are   respectively    a  man  and   woman,   who    are    capable  (')  of      ■^''^^*' 
contracting  validlv  and  are  both  baptized. 

II.  For  the  validity  of  the  sacrament,  in  addition  to  the  valid  Dispositions 


I.  We  shall  speak  later  on  of  the  conditions  required  for  the  ability  of  the 
contracting  parties,  when  we  treat  of  the  impediments  of  marriage. 


l86  THE  SACRAMENT  OF  MARRIAGE 

of  the  sub-    and  lawful  consent,    it  is   necessary   that  there   should  be  the 
for  the  valid-  intention  of  receiving  the  sacrament,  and  the  intention,  at  least 

ity  of  the     implicit  and  virtual,  of  brineine:  it  about  in  the  name  and  by  the 
sacrament;        ^  .  . 

authority  of  Christ.  This  twofold   intention,  as  we  have  said,  is 

sufficiently  contained  in  the  will   to  contract   marriage  in  the 

manner  that  Christians  contract  it. 
H5. 
for  its  effi-       III.  In  order  that  the  sacrament  may  be  fruitful,  it  is  necessary 

^^O*  >       J.Q  remove  every  obstacle,  whether  absolute  or  relative,  according 

as  it  is  a  question  of  the  fructuosiias  simpliciter  vel  secundum  quid. 

The  absolute  obstacle  is  removed,  for  him  who  is  conscious  of 
his  sin,  by  the  recovery  of  the  state  of  grace  in  any  way  whatever ; 
for  him  who  is  not  conscious  of  his  sin,  by  the  withdrawal  of 
all  attachment  to  mortal  sin. 

He  who  knowingly  receives  the  sacrament  of  marriage  in 
mortal  sin  receives  it  unworthily,  and  therefore  commits  a  sin  of 
sacrilege.  It  cannot,  however,  be  said,  as  a  general  rule,  that  he 
commits  another  sin  in  that  he  is  an  unworthy  minister  ;  because, 
in  the  first  place,  it  is  doubtful  if  on  this  head  a  new  species  of  sin 
is  added,  to  the  former,  and,  in  the  second  place,  even  if  it  is 
added,  objectively  speaking,  the  delinquent  will  not,  as  a  rule,  be 
guilty  of  it,  owing  to  the  want  of  advertence, 

IV.  That  the  reception  of  the  sacrament  may  be  lawful  : 
116. 
for  its  law-       We  are  not  speaking  here  of  the  different  formalities  required 

ju  ness.      i^y  marriage  as  a  contract,  and  we  also  omit  for  the  present  the 

question  of  necessary  religious  instruction,  of  which  we  shall 

speak  below  in  n°  331,  but  we  will  now  give  our  attention  to  the 

much  debated  point,  whether  it  is  or  is  not  necessary  that  sacra- 

PrcUminary  mental  confession  should  precede  the  reception  of  the  sacrament 

^'notltrktl^  of  matrimony.  It  seems  quite  clear  that  no  divine  or  ecclesiastical 

rriquired,    precept  prescribes  preliminary  confession.  For  : 

divine  law,  A.  The  divine  law  does  not  of  itself  impose  it.  It  is  true  that 
marriage  is  a  sacrament  of  the  living,  and  so,  by  the  divine  law, 
is  to  be  received  in  a  state  of  grace  ;  but  grace  already  exists  in 
the  souls  of  the  just,  and  sinners  can  obtain  it  by  a  perfect  act  of 
contrition.  There  is  no  positive  divine  law  which  makes  confession 
obligatory  for  them,  as  a  preparation  for  marriage  ;  such  as 
exists,  for  example,  with  regard  to  the  reception  of  Holy  Com- 
munion. 


THE  SACRAMENT  OF  MARRIAGE  187 

B.  The  common  ecclesiastical  law  is  equally  silent  on  the  point     or  by  the 

ry  ■      c  rry  o  wT^r    common  eccU- 

and  prescribes  nothing.  Thus  the  Council  of  Trent,  bess.  AAiV,  siastical  law, 

cap.  I,  De  Reformatione  Matrimonii,  exhorts,  but  does  not  oblige,  the 

parties,  «  before  contracting  marriage,   or  at  least  three  days 

before  its  consummation  (*),  carefully  to  confess  their  sins,   and 

piously  approach  the  Most  Holy  Sacrament  of  the  Eucharist  ». 

The  Roman  Ritual,   De   Sacr.   Matrim.,  n°    17,  desires  that  the 

parish  priest  should  «  admonish  the  parties,  before  contracting 

marriage,   to  confess  their  sins  carefully,  and  piously  approach 

to  the  Most  Holy  Eucharist,  and  to  the  reception  of  the  sacrament 

of  Matrimony  ».  This  admonition,  to  be  made  by  the  parish  priest, 

considering  the  disciphne  of  the  Council  of  Trent,  does  not  imply 

a  real  precept  binding  the  parties  about  to  be  married,  as  Barru- 

FALDi  admits.  Comment  aria  ad  Rit.  Rom.,  tit.  XLI,  no  181. 

C.  The   diocesan  law,  in  many  places,  and  in  particular  in   the     or  by  the 

..  r    T-,  1  •  1-     ■  r        diocesan  law, 

diocese  01    Bruges,    more   or  less  requires   preliminary   conres- 

sion  (*).   But    one  may  well    ask   if  this    discipline  concerning 


I.  This  exhortation  to  confession  and  communion  is  especially  directed 
Against  witchcraft,  which,  in  the  common  opinion  of  the  time,  often  prevented 
intercourse,  brought  about  sterility  in  women,  or  procured  abortion.  As  an 
efficacious  remedy  against  such  evil  machinations,  the  Fathers  of  the  Council 
recommended  the  pious  frcquentation  of  the  sacraments,  and  this  is  why  they 
insist  that  the  parties  should  go  to  confession  and  communion,  if  not  before  the 
marriage,  at  least  three  days  before  its  consummation,  as  a  preparation  for  it, 
having  before  their  eyes  the  counsel  of  the  Angel  Raphael  to  Tobias,  Tob.,  VI. 

Such  witclicr aft, in  the  Middle  Ages  and  indeed  long  after, had  the  reputation  of 
being  in  extensive  use,  and  many  diocesan  decrees  provided  various  penalties 
against  it,  which  may  be  found,  in  the  Nouv.  Rev.  theol.,  V,  p.304  seq.  Among  the 
cases  formerly  reserved  in  the  diocese  of  Bruges,  a  treatise  dating  from  about 
1753,  mentions,  p.  113,  the  ligatura,  a  species  of  witchcraft,  called  by  the 
Flemings  «  den  nestelinck  knopen  »,  and  by  the  French  «  nouer  I'aiguillette  ». 
The  effect  of  this,  says  the  work  in  question,  was,  «  to  render  husbands  cold  and 
bewitched,  i.  e.,  unfit  for  the  conjugal  act  »  ;  it  was  worked  by  making  a  certain 
knot  while  pronouncing  certain  words,  and  was  employed  also  «  for  procuring 
abortions  and  difficult  confinements,  and  for  causing  children  to  die  before 
baptism  ».  The  author  adds  that  this  practice  was  at  that  time  «  more  common, 
especially  in  the  country,  among  young  people  under  the  influence  of  love  and 
jealousy, than  one  unacquainted  with  the  matter  could  bring  himself  to  believe*. 
Cf.  Franz,  o.  c,  II,  p.  178-184. 

3.  The  Liber  Manualis  of  the  diocese  of  Bruges  has,  p.  189  :  «  Those  intending 
to  marry  must  be  admonished  to  go  to  confession  at  least  three  days  before  the 


l88  THE  SACRAMENT  OF  MARRIAGE 

going  to  confession  imtnediately  before  marriage,  is  of  precept, 
or  merely  of  direction  and  advice.  The  Noiiv.  Rev.  theol.  does  not 
decide  the  question,  in  its  article  in  vol.  V,  p.  314.  Yet  on  the 
one  hand,  the  wording  of  the  decrees  does  not  oblige  us  to 
regard  them  as  imposing  a  strict  obligation  on  the  parties 
under  pain  of  refusal  of  marriage  ;  and  on  the  other  hand  it 
is  more  in  conformity  with  the  principles  of  the  law,  to  interpret 
the  regulation  in  its   less    rigorous  sense. 

And  m  truth,  as  we  have  just  seen,  preliminary  confession 
is  not  required  either  by  the  divine  law  or  by  the  common 
ecclesiastical  law  ;  and  those  who  omit  it  do  not  deserve 
always  and  indiscriminately  to  be  deprived  of  the  nuptial 
blessing,  for  instance,  such  as  have  no  mortal  sin  on  their 
consciences.  Moreover,  we  must  remember  that  the  Bishop 
has  no  power  to  set  up  fresh  impedient  impediments  to  marriage, 
as  Benedict  XIV  acknowledges,  De  Syn.  dioeces.,  1.  VIII,  cap. 
XIV,  no  5. 
but  is  to  be  In  addition  to  this,  episcopal  and  synodal  decrees  exacting 
*  ^^y^j^^^-^  evidence  of  confession,  have  more  than  once  been  modified  by 
Rome,  in  the  sense  that  evidence  of  confession  may  be  asked 
for,  but  not  exacted  ('),  and  consequently,  that  marriage  may 
not  be  refused  to  the  recalcitrant  (-).  Cf.  the  decree  of  the 
S.  C.  de  P.  F.,  of  21  Sept.  1840  (Collectan.,  n.  197)  (')  ;  and 
compare  with  the  decree  of  the  same  Congregation  of  17  Apr. 


solemnization  of  their  marriage,  and  to  go  to  communion  on  the  day  preceding 
it...  Moreover  he  (the  parish  priest)  will  direct  them  to  bring  him,  before  the 
celebration  of  the  marriage,  their  billet  de  confession  ».  It  further  says  :  «  It  is 
also  our  desire,  in  order  to  avoid  various  difficulties,  and  to  ensure  the  more 
fruitful  reception  of  the  sacrament  of  matrimony,  that  the  Rev.  parish  priests 
should  advise  those  about  to  marry  to  approach  the  sacraments,  on  the  day  on 
which  the  first  publication  of  their  banns  is  made,  as  that  is  a  solemn  occasion 
for  them  ». 

I.  The  preliminary  confession  is  undoubtedly  very  opportune,  and  even  the 
two  confessions  at  fixed  dates,  as  recommended  in  the  diocese  of  Bruges  :  that 
so  any  impediment  may  be  the  more  readily  discovered  in  time,  and  embarrass- 
ment avoided. 

3.  For  the  line  of  conduct  to  be  adopted  towards  them,  see  below,  no  118. 

3.  The  Sacred  Congregation,  when  asked  to  approve  a  decree  exacting  evidence 
of  confession,  replied  :  «  quoad  fidem  confessionis,  suadendum  ut  exhibeant ;  sed, 
si  renuant,  non  ideo  a  matrimonio  excludendi  ». 


THE  SACRAMENT  OF  MARRIAGE  189 

1820  (ibid.,  in  note,  and  n.  1521)  ;  also  the  decree  of  the  S.  C.  C, 
of  28  Aug.  1852,  in  the  Analecia  jur.  Pont.,  I,  p.  704  ss.,  and 
Bangen,  Insir.  prat.,  II,  p.  233  ss.  Cf.  also  De  Becker,  De 
Mair.,  p.  267  ;  Collat.  Nam.,  1904,  pp.  85  s.  ;  Nederl.  Kaih, 
Stemmen,  1905,  p.  21  ss.  ;  and,  in  a  different  sense.  Rev.  du 
clerge  frangais,  t.   L,  p.   745  ss. 

Scholion.  Assistance  of  the  parish  priest  at  the  marriage  of 
persons  unworthy   to  receive   the   sacrament. 

A.  If  they   are   occult  sinners   :  ^.^ 
The  parish  priest   who  knows  of  the  bad  dispositions    of  a     When  and 

prospective  bride  or  bridegroom  through  confession  only,  cannot  parish  priest 

refuse  to  assist  at  the  marriage,  even  when  celebrated  secretly  ;  '^"^^^  ?^  ^^^^ 

1  marriage  : 

but  in  the  confession  itself  he  can  and  ought  prudently  to  deter 

the   penitent   from    such  a   sacrilege   (').    If    his   knowledge    is  ^o  of  an  oc- 

derived  from   extra-sacramental   information,   he   ought   still  to  ' 

permit  the  marriage  when   it  is  to  be  celebrated  publicly,   but 

not  when  it  is  to  take   place  privately. 

B.  If  it  is  a  question  of  public  sinners  {^)  :  So  of  a  public 
1.    Ordinary  public  sinners    are  such  as,   through   their  own  a)^ordinarv 

fault,  are  ignorant  of  the  rudiments  of  Christian  doctrine,  and 
refuse  to  fulfil  their  religious  duties,  though  without  denying  their 
faith.  A  parish  priest  cannot  assist  at  their  marriage,  except  for 
some  grave  and  proportionate  reason. 

Such  aissista-nce  is  of  itself  illicit,  seeing  that  it  involves  coope- 
ration (in  a  wide  sense)  with  the  sacrilege  committed  by  the 
unworthy  party,  and  the  more  so,  as  the  parish  priest  is  bound  in 
justice  to  watch  over  the  safety  of  his  people  and  keep  them  from 
sin. 

Nevertheless,  this  cooperation  is  permissible,  as  often  as  there 
is  a.  proportionate  excusing  cause.  This  will  be  the  case  whenever 
the  good  of  a  third  party,  e.  g.,  of  a  child,  or  the  good  of  the 


1.  It  may  sometimes  be  best  to  say  nothing,  when  the  party  concerned  is 
more  or  less  in  good  faith,  and  there  is  no  prospect  that  the  admonition  will  prove 
effective. 

2.  We  do  not  speak  here  of  pagans  and  heretics.  With  regard  to  them,  it  is 
necessary  to  take  into  account  the  special  laws  of  the  Church,  of  which  we  shall 
speak,  when  dealing  with  the  impediment  oi  disparitas  cultus  and  of  mixtae  reli- 
gionis. 


I90       .  THE  SACRAMENT  OF  MARRIAGE 

contracting  parties  themselves,  or  the  necessity  of  preventing 
further  sins,  or  of  avoiding  scandals,  demands  the  marriage. 
Thus,  a  parish  priest  may  often  proceed  with  a  marriage  of  this 
kind,  if  it  is  a  question  legitimating  a  child  already  born,  or 
shortly  expected  ;  if  it  is  a  matter  of  preventing  or  putting  an  end 
to  the  scandal  of  an  unlawful  cohabitation,  or  of  a  civil  marriage  ; 
or  if  the  interests  of  the  properly  disposed  party,  who  cannot 
without  grave  inconvenience  give  up  the  marriage,  require  it. 
b)  infamous.  2.  A  second  class  of  public  sinners  comprises  those  who,  in 
theological  language,  are  designated  as  being  taxed  with  infamy 
(€  infames  *),  such  as  excommunicated  persons,  freemasons,  and 
those  who  have  abjured  the  faith.  With  regard  to  them  : 

a/  The  parish  priest  can  never  assist  at  the  marriage  of  a  per- 
son who  is /)«6//c/y  excommunicated  Q-nd  vitandus  (e.  g.,  one  excom- 
municated by  name  and  denounced  as  such,  or  a  notorious  per- 
cussor  clericorum)  except  in  a  case  of  very  great,  not  to  say  extreme, 
necessity ;  for  the  Church  forbids  communion  with  such  in  religious 
matters. 

b/  As  regards  persons  publicly  excommunicated,  but  not  vitandi, 
or  those  notoriously  belonging  to  freemasonry  or  some  similar 
sect  ('),  the  parish  priest  should  refer  to  the  Bishop.  It  is  for  him  to 
decide  in  each  particular  case,  according  to  the  circumstances, 
and  with  a  due  regard  for  the  evils  that  a  refusal  might  entail,  if 
he  will  permit  the  religious  marriage  to  take  place,  and  under 
what  conditions  and  safeguards  (*). 

An  answer  from  Rome,  given  in  i860,  and  a  decree  issued 
in  1883,   require  the  omission  of  the  celebration  of  the  Mass  (and 

I.  Cf.  De  Brabandere-Van  Coillie,  o.  c,  n°  1457  and  notably  no  1319, 
where  he  says  that  €  socialism  ought  to  be  classed  with  societies  of  a  masonic 
nature  »,  since  it  is  «  a  society  that  conspires  against  the  Church  and  lawful 
authority »  ;  nevertheless  those  af^dliated  to  any  socialist  group,  no  matter 
what,  do  not  all  lie  under  the  censure  contained  in  the  Constitution  Apostolicae 
Sedis,  and  many  among  them  do  not  incur  this  excommunication,  because  they 
are  ignorant  of  the  objects  of  socialism. 

a.  See  the  reply  of  the  S.  Penit.,  of  10  Dec.  i860  ;  the  decree  of  the  C.  S.  O., 
of  31  Aug.  1861 ;  the  decree  of  the  C.  S.  O.,  of  31  Feb.  1863  (in  the  Collect,  de 
Prop.  Fide,  nos  1538,  1529,  and  1534) ;  and  the  decree  of  28  June  1865,  embodied 
in  the  decrees  of  the  C.  S.  O.  of  33  Apr.  1873  [Collect.,  n°  1552)  and  of  30  Jan. 
1867,  ad  I"" ;  this  second  decree  is  given  in  the  decree  of  the  C.  S.  O.  of  35 
May  1897  [Collat.  Bru^.,  t.  Ill,  p.  350). 


THE  SACRAMENT  OF  MARRIAGE  I9I 

consequently  of  the  solemn  blessing  also,  which  is  given  during 
the  Mass),  unless  there  are  imperative  reasons  to  the  contrary. 
According  to  a  decree  of  1865,  as  quoted  in  the  decree  of 
1873,  every  ecclesiastical  rite  is  to  be  excluded  (*) ;  but  this  text, 
as  quoted  in  the  decree  of  1897,  is  no  longer  so  categorical, 
and  the  whole  question  is  left  to  the  decision  of  the  Bishop, 
at  least,  according  to  the  decree  of  1883,  «  until  the  Apostolic 
See  shall  have  issued  a  general  decree  on  the  subject  »  (*). 

c/  «  If  it  is  a  question  of  a  marriage  between  a  Catholic 
and  a  (baptized)  person  who  has  renounced  the  faith  (like  most 
unbelievers  and  freethinkers  of  the  present  day,  who  only  ask 
for  a  religious  marriage  out  of  deference  to  their  brides),  but 
who  has  not  joined  any  false  religion  or  heretical  sect,  the 
parish  priest  ought  first  of  all  to  do  his  best  to  break  off  the 
engagement.  If  he  cannot  succeed  in  this,  and  has  reason  to 
fear  that,  if  he  refuses  to  assist  at  the  marriage,  there  may 
be  a  grave  scandal  or  other  serious  evil,  he  must  lay  the  matter 
before  the  Bishop,  who,  making  use  of  the  faculty  now  granted 
to  him  ('),  after  due  consideration  of  all  the  circumstances,  will 
be  able  to  permit  the  passive  assistance  of  the  parish  priest 
as  an  authorized  witness,  provided  he  is  satisfied  as  to  the  Ca- 
tholic education  of  the  children  and  other  like  conditions  ».  Deer. 
of  the  C.  S.  O.  of  30  Jan.  1867,  ad  i"",  given  in  the  deer,  of 
1897,  1.  c. 


I,  See  also  the  Instructio  of  the  C.  S.  O.  of  5  July  1878,  addressed  to  the  Ordi- 
naries of  the  Empire  of  Brazil  :  « It  can  in  no  way  be  tolerated,.,  that  marriages 
contracted  by  freemasons  should  be  celebrated  with  all  the  solemnity  of  the 
Catholic  rite...  But  when  the  parish  priest  is  quite  unable  to  prevent  such  a 
marriage...  recourse  must  be  had  to  the  Ordinary,  who...  will  be  able  to  permit 
the  parish  priest  to  assist  at  the  ma.rri&ge  passively,  i.  e.,  without  the  blessing  and 
other  ecclesiastical  rite,  but  merely  as  an  authorized  witness  ».  In  the  Collect.,  no 
1863. 

3.  In  the  diocese  of  Bruges  the  Mass  is  always  forbidden,  and  the  preliminary 
conditions  imposed,  especially  as  to  the  education  of  the  children  and  the  danger 
of  perversion  for  the  Catholic  party. 

3.  To  the  amended  question  :  «  Are  the  words  of  the  decree  of  the  C.  S.  O.,  of 
Wednesday  30  Jan.  1867,  ad  i  :  '  The  case  must  be  laid  before  the  Bishop,  who, 
making  use  of  the  faculty  that  has  now  been  granted  to  him  '  ,  applicable  to  all 
the  Bishops  »  ?,  a  reply  was  given  in  1899  :  «  Affirmatively,  after  audience  with 
His  Holiness  ».  Anal,  eccles.,  VII,  p.  144. 


192  THE  SACRAMENT  OF  MARRIAGE 

What  is  According  to  the  Liti.  Apost.  of  Gregory  XVI,  30  Apr.  1841 
^^sive  assis^^'  (Collect.,  n°  1428),  passive  assistance  is  «  material  presence  with- 
tancc.  out  any  ecclesiastical  rite  »  ;  consequently  the  parish  priest 
is  forbidden  to  appear  in  any  sacred  vestment,  and  must  be 
present,  as  they  say,  in  nigris.  He  niust  omit  all  the  cere- 
monies of  the  Roman  Ritual,  the  words  :  Ego  vos  conjungo..., 
the  blessing  of  the  ring,  the  prayers  and,  a  fortiori,  the  Mass 
and  the  nuptial  blessing.  Since  the  decree  Ne  Temere,  however, 
it  is  not  enough  that  he  should  merely  hear  the  words  of 
consent,  he  must  also  personally  ask  and  receive  the  consent  of 
the  contracting  parties  ('). 

The  conditions  to  be  imposed,  besides  the  Catholic  education 
of  all  the  children,  are  that  the  party,  who  has  abandoned 
the  Faith,  should  promise  the  Catholic  party  freedom  in  the 
practice  of  religion,  and  that  the  Catholic  party  should  earn- 
estly strive  to  bring  about  the  conversion  of  the  other  party. 
118. 
Observations.      Note  1.  If  there  is  time  for  recourse  to  the  Bishop,  the  parish 

priest  should  always  consult  him  before  refusing  to  assist  at 
the  marriage  of  those  who  are  unworthy,  even  outside  of  the 
cases  mentioned  under  b/  and  c/.  If  the  circumstances  do  not 
admit  of  delay,  he  will  then  act  in  accordance  with  the  rules 
indicated. 

2.  In  refusing  the  unworthy,  the  Bishop  and  the  parish  priest  do 
not  set  up  any  matrimonial  impediment  :  that  is  beyond  their 
powers.  The  impediment,  if  the  unworthiness  of  the  subject  (*) 
can  be  called  such,  is  already  in  existence,  and  the  Bishop  and 
parish  priest  only  shape  their  course  accordingly. 

Moreover,  the  Bishop  and  the  parish  priest  (the  latter  only 
provisionally)  are  generally  recognised  as  having  the  power  to 
stop  a  marriage,  even  apart  from  the  unworthiness  of  the  subject, 
for  a  good  and  reasonable  cause,  e.  g.,  to  put  an  end  to  a  scandal, 
and  that  as  long  as  the  cause  exists  ('). 


1.  See  above,  no  64,  and  below,  no  257. 

2.  Strictly  speaking,  the  impediment  directly  affects  the  marriage  as  a  contract, 
and  not  as  a  sacrament.  See  below,  n"  234. 

3.  See  below,  no  221  and  no  244  ;  cf.  Bbned.  XIV,  De  Syn.  dioic,  1.  VIII,  c. 
XIV,  no  5 ;  Gasparri,  o.  c,  I,  nos  199  ss.;  Banqen,  Instr.  Pract.,  II,  nos  333  ss, ; 
De  Becker,  De  Matr.,  p.  392  ss. 


THE  SACRAMENT  OF  MARRIAGE  193 

3.  As  we  have  said  above,  parties  who  refuse  to  go  to  con- 
fession before  marriage,  cannot  be  considered,  by  the  very  fact 
and  by  that  alone,  as  public  sinners,  and  as  such  be  denied  the 
religious  rites  of  marriage. 

Nevertheless,  as  a  matter  of  fact, \i  will  rarely  happen  that,  in  such 
a  case,  the  Bishop  and  parish  priest  will  not  have,  on  other 
grounds,  some  canonical  reason  for  opposing  the  marriage,  at 
least  provisionally,  and  with  due  regard  to  the  circumstances. 
For,  such  a  refusal  to  go  to  confession  will  scarcely  ever  occur, 
except  on  the  part  of  those  who  in  other  respects  make  a  practice 
of  neglecting  their  duties  as  Christians,  and  are  consequently  to 
be  treated  as  public  sinners. 

Article  5.  Ceremonies  of  the  Sacrament  of  Marriage. 

I.  Rites  actually  in  force. 

...  ^19- 

We  assume  here  the  observance  of  the  formalities  required  by    Rites  of  the 

the  Decree  Ne  Temere  for  the  validity  of  the  contract ;  the  further     *^*''*'"*"  • 

principal  prescriptions  are  as  follow  :  /.  actual 

rites  : 
1.  According  to  common  law:  a)  by  common 

law, 
The  ceremonies  of  the  Roman  Ritual  must  be  observed, Tit.  VII, 

chap.  I  and  2,  viz.  the  asking  and  giving  the  consent,  blessing 
the  nuptial  ring  and  putting  it  on  the  finger  ;  then,  if  desired,  the 
celebration  of  the  Mass  pro  sponso  et  sponsa,  with  the  solemn  bene- 
diction which  it  contains.  Cf.  Collat.  Brug.,  t.  XIII,  p.  384  s. 

The  Mass  pro  sponso  et  sponsa  is  a  special  votive  Mass,  contained 
in  the  Roman  Missal ;  it  begins  with  the  introit :  Deus  Israel,  and 
has  proper  prayers. 

The  solemn  nuptial  blessing  is  inserted  in  it ;  it  consists  of  the 
pva.yers :  Propitiare  Domine. . .  Deus  qidpotestate...  to  be  said  between 
the  Pater  Noster  and  the  Libera  Nos ;  and  of  the  prayer  :  Deus 
Abraham,..,  to  be  recited  before  the  Placeat  tibi  S.  Trinitas. 

The  Mass  pro  sponso  et  sponsa  and  the  above  blessing  must  be 
omitted  when  the  woman  has  already  received  it  in  a  former  mar- 
riage ('),  and  also  in  the  case  of  mixed  marriages  as  we  shall  see 
farther  on. 


I.  The  Rit.  Rom.,  tit.  VII,  chap.  I,  no  15,  says  that  the  solemn  blessing  must 

13 


194  "^"E  SACRAMENT  OF  MARRIAGE 

Outside  these  cases  and  the  forbidden  times,  the  marriage  may 
always  be  blessed  solemnly  with  Mass,  even  though  the  rubrics 
do  not  allow  the  Nuptial  Mass  (') ;  the  Mass  of  the  day  is  then  said 
with  a  commemoration  from  the  nuptial  Mass,  and  the  blessing 
is  given  just  as  in  that  Mass. 

The  Church  earnestly  desires  that  all  marriages  that  are  not 
mixed  marriages,  and  in  which  the  bride  has  not  formerly  received 
the  solemn  blessing,  should  be  blessed  in  this  way,  i.  e.  with 
Mass  (^) ;  for  this  blessing  cannot  be  given  without  the  Mass  ('). 
For  this  reason,  in  case  the  priest  cannot  apply  the  Mass  to  the 
married  couple  themselves,  because  they  pay  no  honorarium,  the 
decree  of  the  C.S.O.,  of  Sept  1841,  declares  that  the  celebrant  can 
take  another  intention,  and  that  he  satisfies  his  obligation  by  the 
Mass  pro  sponso  et  sponsa,  unless  he  who  gives  the  offering  definitely 
desires  another  (*).  The  Holy  See  also  desires  that  this  blessing 
be  given  «  to  all  those  who  did  not  receive  it  when  they  were 
married,  no  matter  why,  even  if  they  ask  for  it  after  having  been 
married  a  long  time  ».  Moreover,  it  prescribes  that  «  these  same 
Catholic  couples  should  be  exhorted  to  ask  for  it,  as  soon  as  pos- 
sible, if  they  have  not  received  the  nuptial  blessing  ».  Decree  of 
theC.  S.  O.  Aug.  31"^  1881  C). 


also  be  omitted  in  the  case  of  the  remarriage  of  a  widower ;  it  adds  however, 
that  «  where  the  contrary  custom  exists,  in  the  case  of  a  widower  marrying  a 
young  girl,  it  must  be  observed  ».  This  question  is  now  however  (in  all  probabi- 
lity) settled  by  the  Decree  of  the  C.  S.  O.,  of  the  31st  of  August  1881  (quoted 
in  the  Coll.  Brug.,  t.  I,  p.  97),  which  enjoins  the  giving  of  the  solemn  blessing, 
with  the  single  exception  :  «  provided  that  the  woman,  if  she  is  a  widow,  has  not 
already  received  it  in  a  former  marriage  ».  In  any  case, the  custom  exists,  in  our 
countries,  of  blessing  the  marriages  of  widowers  with  young  girls,  and  conse- 
quently is  rightly  followed  and  should  be  adhered  to. 

I.  As  is  the  case  (outside  the  forbidden  times)  for  Sundays,  Holydays  of  obli- 
gation, doubles  of  the  i^t  and  3"d  class ;  also  the  whole  octave  of  the  Epiphany, 
the  vigil  and  the  whole  octave  of  Pentecost,  and  the  whole  octave  of  the  feast 
of  Corpus  Christi  :  in  a  word,  all  those  days  that  exclude  the  offices  of  doubles  of 
the  and  class. 

3.  Consult  Collat.  Brug.,  t.  I,  p.  98;  A.A.S.,  I,  p.  355,  where  the  decree  of  the 
Holy  See,  Feb.  13th  1909,  is  cited. 

3.  See  appendix  for  England. 

4.  Collat.  Brug.,  I,  p.  loi,  and  t.  IV,  p.  184  ss. 

5.  Cf.  Coll.  Brug.,  t.  I,  p.  97  and  100,  and  also  t.  IV,  p.  354  ss.,  and  t.  XII, 
p.  35  s. 


THE  SACRAMENT  OF  MARRIAGE  I95 

2.  Prescriptions  of  diocesan  law  (diocese  of  Bruges)  :  h)  by  diocesan 

We  have  observed  that  the  ceremonies  of  the  Rit.  Rom.  do  not  exclude  of  Bruges). 
particular  rites ;  the  Ritual  even  says  explicitly,  that  instead  of  the  formula, 
Ego  conjungo,  other  words  may  be  used,  «according  to  the  rite  observed  in 
each  province*;  and  at  the  end  it  adds  :  <  If  there  are  provinces  that  have 
to-dayother  usages  and  laudable  ceremonies  for  the  celebration  of  marriage, 
the  Holy  Synod  of  Trent  desires  that  they  observe  them  ».  In  accordance 
with  these  ideas,  different  rites  obtain  in  different  dioceses.  Thus,  in  the 
diocese  of  Bruges,  the  Bishop,  by  a  decree  dated  Oct.  14,  1897,  approved 
of  certain  introductory  ceremonies  to  the  celebration  of  the  Mass,  and  ord- 
ered them  to  be  observed,  along  with  the  prescriptions  of  the  Rit.  Rom.  ('). 

For  example  :  before  asking  for  the  marriage  consent,  the  priest  sprink- 
les the  betrothed  couple  with  holy  water,  and  explains  to  them  the  nature 
of  the  grace  that  they  are  about  to  receive,  and  the  gravity  of  the  obligation 
that  they  are  about  to  undertake.  For  the  giving  of  the  consent,  he  not  only 
tells  the  parties  to  give  the  right  hand,  but  he  puts  the  stole  round  the  two 
hands,  after  which  he  asks  for  the  consent  according  to  the  Ritual,  keeping 
the  fonnula :  Ego  vos  conjungo.  Then  he  removes  the  stole,  sprinkles 
the  couple  with  holy  water,  blesses  and  passes  the  ring,  still  according  to 
the  Ritual. 

The  service  concludes  with  the  ceremonies  which  the  Pastorale  Brug., 
p.  i32  s.,  formerly  prescribed  for  the  marriages  of  widows  :  «  The  husband 
ascends  to  the  altar  in  a  respectfid  manner,  followed  by  his  spouse  ;  he 
kisses  the  altar  himself  first  and  then  his  spouse  kisses  it,  both  then  kneel 
on  the  top  step,  and  the  priest  standing  before  them  and  facing  them, 
recites  the  following  prayer  :  Let  us  pray  :  O  Lord,  turn  thine  eyes  upon 
this  union  ;  and  as  thou  didst  send  thine  holy  angel  the  peaceful  Raphael 
to  Tobias  and  Sarah,  daughter  of  Raguel,  even  so,  0  Lord,  deign  to  grant 
thypotection  to  these  thy  servants  here,  that  they  may  continue  to  accomplish 
thy  will,  may  live  and  grow  old  in  thy  love,  and  may  have  a  numerous  and 
lasting  posterity.  Through  Christ  Our  Lord.  Amen. 

May  the  grace  of  Our  Lord  Jesus  Christ,  Divine  charity  and  the  out- 
pouring of  the  Holy  Ghost,  be  always  with  you.  Amen  (*). 

Note.  1.  As  regards  the  place  where  the  marriage  should  be  celebrated.  Remarks  con- 
the  Rit.  Rom.,  Tit.  VII,  chap,  i,  n"  16,  says  :  «  It  is  above  all  proper  to  ^rningthe 


1.  Cf.  Coll.  Brug.,  1. 1,  p.  601  ss. 

2.  The  vilatio  capitis,  which  consisted  in  placing  the  stole  in  the  form  of  a 
cross  on  the  heads  of  the  parties,  has  been  abolished  ;  likewise,  the  particular 
nuptial  blessing  which  is  given  outside  the  Mass,  and  which,  according  to 
the  Past,  Brug.,  p.  129  ss.,  was  formerly  in  use  for  the  marriages  of  young 
girls. 


bration. 


196  THE  SACRAMENT  OF  MARRIAGE 

celebrate  it  in  the  church  >.  According  to  the  Pastorale  Brug.,  p.  123, 
the  disciplinary  measures  of  which  are  still  in  force,  «  the  marriage  cannot 
be  celebrated  elsewhere  than  in  the  church,  except  in  the  case  of  grave 
necessity  (*),  which  must  be  left  to  the  decision  of  the  Ordinary,unless  there 
be  danger  of  death  » . 

This  necessity  may  arise  from  different  causes,  e.  g.  from  the  inability  of 
one  of  the  parties  to  go  to  the  church  (^),  or  from  the  necessity  of  secretly 
re-establishing  a  marriage  invalid  through  occult  crime.  There  is  evidently 
an  imperative  reason  for  celebrating  the  marriage  at  home,  when  there  is 
question  of  the  marriage  of  a  dying  person  in  extremis,  as  we  have  said  ; 
for  the  rest,  in  this  case,  other  and  different  special  prescriptions  must  still 
be  observed,  which  will  be  made  known  in  the  course  of  this  treatise, 
especially  in  n°  401. 
Marriage  by  2.  As  regards  ma.vna.ge  by  proxy  or  by  letter,  no  special  ceremony  is 
Proxy,  required  ;  it  is  however  evidently  to  be  observed,  as  we  have  said  above, 
in  n°s  62,  70  and  100,  that  the  formalities  must  be  carried  out  which  arise 
either  from  natural  or  positive  law,  for  the  validity  of  the  consent  given  in 
this  manner. 

Let  us  here  recall,  in  accordance  with  what  we  said  in  n°  119,  the  duty 
of  counselling  the  parties  to  seek  the  nuptial  blessing  on  the  first  oppor- 
tunity. 

II.  Ancient  rites  (''). 

2.  Ancient        In  former  times,  was  first  celebrated  the  betrothal ;  this  was  generally 

rites,         

I.  Save  also,  as  is  clear,  the  cases  in  wich  the  Church  forbids  the  celebration 

of  the  marriages  in  the  church,  as  for  example,  mixed  marriages,  and  those 

of  certain  sinners,  called  in  canonical  language  infamous  (inf antes),  according 

to  the  rules  given  in  no  117. 

3.  This  impossibility  occured  twice  in  the  diocese  of  Bruges,  in  the  one 
year  1903. 

3.  The  rites  described  here  are  those  that  are  found  in  various  medieval  rituals 
and  ordinals,  especially  in  France,  England  and  Germany. 

Originally,  in  many  places,  marriage  was  contracted  by  the  consent  of  the 
parties  mutually  given  in  the  presence  of  the  parents,  relations  and  friends, 
with  or  without  the  presence  of  the  priest ;  thereafter  was  added,  as  a  distinct 
ceremony,  the  solemnization  of  the  marriage,  with  various  religious  rites, 
especially  that  of  attendance  at  the  church  and  at  Mass  {Kirchgang,  as  it  was 
called),  with,  in  the  course  of  time,  the  special  nuptial  blessing.  Cf.  Friedberg, 
Das  Recht.,  p.  8  s.;  Howard,  o,  c,  I,  p.  291-308  ;  Lichtbnberger,  o.  c,  p.  54  s.; 
SoHM,  Das  Recht,  p.  158. 

At  a  later  date,  probably  under  the  influence  of  the  fact  that  the  regu- 
lation of  marriage  had  passed  into  the  hands  of  the  Church,  the  giving  of 
consent  also  took  place  with  religious  rites  at  the  door  of  the  church,  and 
with  it  was  intimately   connected   the    solemnization   of  the    marriage    by 


THE  SACRAMENT  OF  MARRIAGE  I97 

contracted  before  the  church,  in  presence  of  the  priest  and  three  or  four 
witnesses  ;  the  ring  and  contract  money  (')  were  exchanged,  and  the  pro- 
mise of  future  marriage  was  entered  in  the  matrimonial  register.  Later 
on,  the  marriage  was  solemnized  : 

1.  The  betrothed  were  presented  to  either  the  assistant  or  the  parish  priest 
by  their  parents,  or  their  guardians,  or  the  bridesman  (*) ;  this  presentation 
of  the  betrothed,  with  the  different  ceremonies  that  followed  it,  and  the 
giving  of  the  consent,  took  place  before  the  outer  door  of  the  church  (^) : 
hence  the  expression  :  to  be  married  before  the  church  (*). 

2.  The  right  hands  of  the  betrothed  were  joined,  and  in  this  position  they 
exchanged  their  vows.  The  joining  of  the  right  hands,  which  was  also  the 
custom  among  the  Romans  (*),  was  done  by  the  priest,  who  put  the  right 


means  of  the  Kirchgang  and  accompanying  ceremonies,  as  will  be  presently 
described.  This  was  not,  however,  universally  in  use  ;  thus  at  Courtrai,  in 
Flanders,  according  to  a  document  of  1512,  the  solemnization  of  the  marriage, 
took  place  on  the  Sunday  following,  on  which  day  «  ad  officium  infra  maioris 
missae  solemnia  venire  debebant  (nupti)  oblationes  suas  ibidem  facturi  et  matri- 
monium  husjusmodi  solemnizaturi  ;  vel  si  omiserint,  debebant...  summam 
aliquam  solvere  nomine  redemptionis  ». 

I. The  Subarrhatio  consisted  in  the  gift  of  a  ring  from  the  man  to  his  future  wife 
(sometimes  the  gift  was  reciprocal),  as  a  pledge  or  earnest  of  his  plighted  troth. 
Sometimes  other  presents  were  added  for  the  same  reason. See  above,under  n"  15. 

2.  This  office  oi  paranymphus  seems  to  have  succeeded  to  that  of  the  pronuba 
of  the  ancient  Romans.  See  Glasson,  o.c,  p. 171.  Among  the  Germans  the  para- 
nymphi  were  called  Brauifiihrer  or  Fiirsprecher.  See  n^  83,  and  Sohm,  Das  Recht, 
p.  71  s.  and  166  s. 

3.  Hence  the  usage,  in  certain  places,of  the  Brauttiiren,  or  Elietilren,  i.e.  of  the 
nuptial  doors,  placed  at  the  entrance  of  the  church ;  these  doors  were  decorated 
with  the  images  of  the  wise  and  foolish  virgins,  awaiting  the  Divine  Spouse.  Cf. 
Dcr  Katlwlik,  t.  XXXII  (1905),  p.  157;  Falk,  o.  c,  p.  3.  s.  These  doors  arc  still  to 
be  found  in  the  cathedrals  of  Basle,  of  Berne  and  of  Strasbourg,  and  in  several 
other  churches.  «  Bekant  ist  vor  alien,  as  Falk  says,  die  St-Sebalduskirche  zu 
Niirnberg  mit  ihrer  Brauttiir  :  im  innern  der  segnende  Heiland  iiber  Adam  und 
Eva,  im  Gewande  die  klugen  und  torichten  Jungfraiien,  aussen,  in  grosseren 
Figuren,  Maria  und  St-Sebald  ». 

4.  In  celebrating  the  marriage  before  the  doors  of  the  church,  it  is  intended 
that  its  celebration  should  be  before  God  (therefore  marriage  is  contracted 
before  the  House  of  God  and  His  minister), and  before  the  people  and  the  Christ- 
ian community  (and  therefore  an  eminently  public  place  is  chosen).  This  is 
expressed  in  the  form  used  in  the  Salisbury  Manual,  p.  50 :  «  ante  ostium  eccle- 
siae,  coram  Deo,  sacerdote  et  populo  »  ;  likewise  in  the  York  Manual,  p.  24, 
and  the  Sarum  Manual,  p.  17. 

5.  Glasson,  o.  c,  p.  i68  and  171. 


igS  THE  SACRAMENT   OF  MARRIAGE 

hand  of  the  bridegroom  into  that  of  his  future  wife,  and  in  certain  places 
covered  them  with  his  stole  ('),  or  even  enveloped  them  in  the  right-hand 
extremity  of  the  stole  («),  the  hands  of  young  girls  being  ungloved,  while 
those  of  widows  were  gloved  (^j.Before  the  joining  of  the  hands,the  betroth- 
ed were  asked  whether  they  wished  to  take  each  the  other  for  husband 
and  wife  respectively. 

3.  The  nuptial  consent  was  asked  and  received  by  the  priest  who  hand- 
ed over  the  wife  to  the  husband  (or  also  the  husband  to  the  wife).  The 
betrothed  used  as  pledge,  different  formulas,  which  were  pretty  well  as 
follows  :  e.  g.  the  priest  said  :  «  John,  do  you  promise  and  swear  to  her 
that  your  goods  you  will  loyally  share  with  her,  that  for  better  or  worse 
you  will  not  abandon  her,  and  that  faith  and  loyalty  as  regards  your  body 
and  your  goods  you  will  maintain  with  her,  and  that  well  or  ill,  all  the 
days  of  your  life  and  hers  you  will  guard  her  .''  —  Sire, yes  »  ;  and  the  same 
for  the  woman. 

See  Martene,  o.  c,  p.  633,  who  gives  also  several  other  formulas  (*). 
Sometimes  also  the  priest  said  to  the  bridegroom  :  t  Say  after  me  :  N.  in 
the  name  of  our  Lord,  I  take  thee  for  my  wife  and  spouse  according  to 
the  ordinances  of  God  and  of  the  holy  Church,  according  to  which  I 
am  bound  to  love  thee  as  myself ;  I  am  bound  to  keep  faith  and  loyalty 
to  thee,  and  to  aid  and  comfort  thee  in  thy  necessities  :  which  things,  and 
all  that  husband  should  do  for  his  wife,  I  promise  to  do  and  to  maintain 


I.  Ordo  Remensis,  in  MARXfeNB,  o.  c,  L.  I,  P.  a^a,  p.  644.  The  custom  of  join- 
ing the  hands  of  the  parties  (Madchen  fesseln)  was  already  in  vogue  among  the 
ancient  Germans.  V.  Roche,  o.  c,  p.  74. 

3.  Ordo  LeodUnsis,  1.  c,  p.  646. 

3.  Martene,  o.c,  p.  608  and  620  ;  Salisbury  Manual^  p.  56  ;  York  Manual,p.36. 

4.  For  example,  here  is  one  on  p.  633.  «John,  will  you  have  this  woman  whose 
name  by  baptism  is  Mary,  for  your  wife  and  spouse  ?  — Sire,  yes.  —  Mary,  will 
you  have  this  man  whose  name  by  baptism  is  John,  for  your  husband  and  spou- 
se ?  —  Sire,  yes.  —  John,  I  give  you  Mary  ;  Mary,  I  give  you  John  ».  Similar 
forms  may  be  seen  in  the  Salisbury  Manual,  p.  55  s.  ;  the  York  Manual,  p.  36  s. ; 
and  the  Sarum  Manual,  p.  19*.  These  words,  and  the  joining  of  the  hands  of  the 
bride  and  bridegroom,  performed  by  the  priest,  signify  that  these  receive  their 
union  of  hands  from  God,  through  the  medium  of  the  priest,  as  remarks  Probst, 
Sacramente,  p.  457  :  «  Es  Liegt  nicht  nur  im  christlichen  Geiste,  dass  der  Mann 
seine  Frau  von  Gott  erbittet,  und  dass  sie  ihm  daher  derPriester,  als  Stellver- 
treter  Gottes,  iibergab,  sondern  es  erhalt  damit  auch  die  Bemerkung  Tertullians, 
wie  Kinder  sich  nicht  ohne  Zustimmung  der  Vater  verehelichen,  so  Christen 
nicht  ohne  Zustimmung  des  himmlichen  Vaters,  ihre  voile  Bedeutung  ».  In  the 
old  English  rituals,  the  bride  was  given  to  the  bridegroom  by  her  father  or  by  her 
friends,  or  by  a  friend  or  guardian,  or  even  by  the  priest  and  guardian.  Cf.  Salis- 
bury Manual,  p.  56  ;  York  Manual,  p.  36  s.;  Sarum  Manual  p.  19  (cf.  ibid.,  p.  116). 


THE  SACRAMENT  OF   MARRIAGE  199 

by  the  faith  and  vow  of  my  body  ».  And  the  same  for  the  woman.  See 
Martene,  1.  c,  p.  654,  compared  with  p.  646,  where  is  given  the  formula 
formerly  in  use  in  the  diocese  of  Liege.  See  also  Opet,  o.  c,  p.  97  ss. : 
he  makes  out  that  the  custom  of  asking  and  receiving  the  consent  of  the 
parties  has  been  taken  up  by  the  Church  from  ancient  Germanic  customs. 

4.  The  blessing  and  putting  on  of  the  ring. 

After  that,  the  priest  proceeded  to  the  blessing  and  putting  on  of  the 
nuptial  ring;  after  having  blessed  it,  he  gave  it  to  the  bridegroom,  who 
from  the  hand  of  the  priest,  passed  it  to  the  hand  of  the  bride. 

In  former  times  the  ring  was  put  on  the  ring  finger  of  the  left  hand  (*), 
to  signify  the  union  of  hearts,  according  to  Yves  de  Chartres,  Panormia, 
VI,  ch.  8  :  for,  as  he  says,  «  in  this  finger  there  is  a  vein  (called  vena  amo- 
ris),  so  they  say,  which  extends  to  the  heart  »  (2).  But,  according  to  most 
of  the  Ordines,  quoted  by  Martene,  the  ring  should  be  placed  on  the  third 
finger  of  ^^^  right  hand, ^d&smg  it  first  on  the  thumb,  while  the  bridegroom 
said  to  the  bride  :  «  In  the  name  of  the  Father  » ,  then  on  the  index  finger, 
saying  :  «  and  of  the  Son  »,  then  on  the  middle  finger,  adding :  c  and  of  the 
Holy  Ghost  »  (s) ;  the  bridegroom  further  saying  :  «  With  this  ring  I  thee 
wed,  and  with  my  body  I  thee  honour,  and  with  this  silver  I  thee  endow  (*). 
In  the  name  of  the  Father  etc.  »  (^). 


1.  This  is  still  actually  stated  by  the  Rit.  Rom.  ;  but  the  Pastorale  Brug. 
indicated  the  ring  finger  of  the  right  hand. 

2.  Migne,  CXLI,  col.  1254.  CF-Friedberg,  Das  Recht,p.  29,  in  a  note;  Howard, 
o.  c,  I,  p.  384 ;  Salisbury  Manual,  p.  59  ;  York  Manual,  p.  37 ;  Sarum  Manual, 
p.  20*.  Another  reason  is  given  in  the  Pontifical  of  the  monastery  of  Lyre  :  «  the 
ring  should  be  put  on  the  left  hand  to  mark  the  difference  between  the  dignity 
of  married  persons  and  Bishops,  who  should  publicly  wear  the  ring  on  the  right 
hand  as  a  sign  of  full  and  complete  chastity  >. 

3. In  the  Salisbury  Manual,  p.  58;  York  Manual,  p. 27;  Sarum  Manual,  p. 19*  and 
Hereford  Manual,  p.  117,  after  the  putting  of  the  ring  on  the  third  finger  with  the 
words  et  Spiritus  Sancti,  the  ring  is  to  be  put  on  the  fourth  finger,  (quem  dicunt 
medicum),  with  the  word  Amen,  and  it  is  added  :  «  ibique  dimittat  annulum  ». 

4.  Formerly,  here  and  there,  in  various  countries,  a  sum  of  money  was  handed 
by  the  bridegroom  to  the  bride  ;  this  was  derived  from  the  primitive  practice 
of  giving  a  marriage  price  to  the  parents  of  the  bride  (cf.  supra,  n°  52);  this 
marriage  price  subsequently  remained  in  use  under  the  form  of  the  payment 
of  a  solidum  et  dcnarium  (cf,  ibid.),  and  afterwards  under  the  form  of  the  payment 
of  13  pieces  of  silver.  Under  this  form,  the  practice  is  still  in  force  in  Spain  (e.g., 
on  the  occasion  of  the  marriage  of  King  Alfonso  XIII,  in  1906),  and  in  some  parts 
of  France.  The  number  of  13  pieces  of  silver  corresponds  with  the  solidum 
(which  was  of  gold,  and  was  equivalent  to  12  denarii)  and  a  silver  denarius. 
Cf.  Thurston,  in  the  Catholic  Encyclop .,  under  Marriage,  IX,  p.  706. 

5.  Cap.  7,  C.  XXX,  qu.  5,  also  mentions  as  a  marriage  cerempny  that  the 


200  THE  SACRAMENT   OF  MARRIAGE 

5.  After  some  prayers  recited  over  the  parties,  they  were  introduced  into 
the  church,  holding  in  their  hands  lighted  candles,  and  they  assisted  at  the 
sacrifice  of  the  Mass  (*). 

6.  During  the  Mass  (*),  before  the  Pax  Domini,  they  were  solemnly 
blessed,  and  during  the  blessing,  or  even  before  it,  they  prostrated  in  prayer, 
and  were  covered  with  a  veil  or  pall  ('),  which  four  men  held  at  the  four 
corners  (*). 


bride  and  bridegroom  are  joined  together  with  a  fillet,  as  by  a  single  bond,  for 
this  purpose  that  they  may  not  break  the  connection  of  conjugal  unity  ;  and 
that  this  fillet  «  candido  purpureoque  colore  permiscetur  :  candor  quippe  ad 
munditiem  vitae,  purpura  ad  sanguinis  posteritatem  adhibetur ;  ut  hoc  signo  ct 
continentiae  lex  tenenda  ab  utrisque  ad  tempus  admoneatur,  et  post  hoc  redden- 
dum debitum  non  negetur  ». 

1.  Formerly  it  was  the  community  Mass  that  they  heard  ;  the  custom  was 
introduced  later  of  celebrating  a  special  Mass  for  them  ;  this  is  met  with  already 
in  the  Gelasian  Sacramentary.  See  Friedberg,  Das  Recht,  p.  8  s.;  Howard, 
o.  c,  I,  p.  396.  In  the  York  Manual,  p.  29,  it  is  said  that  the  Mass  is  to  be  <i« 
Trinitate. 

2.  With  regard  to  the  incensation  made  during  Mass,  the  Salisbury  Manual 
makes  a  curious  observation,  p.  67,  «  quod  ordo  (odor)  thuris  benedicti  nunquam 
datur  in  ecclesia  sponso  et  sponsae  ;  inde  est  quod,  oblato  thure  benedicto  super 
altare,  si  descendat  thuribulus  ad  clericos  vel  ad  laicos,  aliud  thus  (non  bene- 
dictum)  est  apponendum  et  hominibus  offerendum  >.  Cf.  also  the  Sarum  Manual^ 
p.  33*. 

3.  The  velatio  nuptialis  seems  to  have  been  practised  in  two  ways.  The  first 
consisted  mveiling  the  head  of  the  bride,  after  the  manner  in  -which  fiancees  took 
the  veil  in  sign  of  modesty  (S.Ambrose,  De  Abraham,  1.  I,  ch.  9,  Migne,  XIV,  col. 
454).  The  other  consisted  in  extending  the  pall  over  the  married  couple  ;  this  was 
the  symbol  of  the  conjugal  bed  and  its  covering,  as  Kogler  well  shows,  o.  c, 
p.  48.  This  author  remarks  that  this  symbol,  already  in  use  among  the  Hebrews 
(Ruth,  III,  9  ;  Ezech.,  VI,  8),  agreed  perfectly  with  the  blessing  given  to  the 
married  couple,  and  the  prayer  which  asked  for  them  fruitfulness,  which 
blessing  and  prayer  took  place  during  the  rite  of  the  velatio  :  this  symbolic 
signification  of  the  nuptial  bed  will  find  its  confirmation  further  on,  in  n"  169, 
where  we  shall  unfold  the  rite  to  be  followed  in  legitimating  a  child  bom  before 
marriage. 

The  first  manner  is,  it  would  seem,  the  more  ancient ;  it  was  practised  in  the 
celebration  of  marriage,  and  also  in  the  consecration  of  virgins  to  God,  to  mark 
in  the  latter  case  their  virginal  chastity  and  their  spiritual  marriage.This  latter 
symbol  is  often  referred  to  by  the  Fathers,  especially  St.  Ambrose  (De  Lapsu 
virginis  consecratae,  ch.  5,  Migtte,  XVI,  col.  37a  s.)  and  by  ancient  inscriptions, 
as  for  instance,  that  of  the  catacombs  of  St.  Priscilla  :  c  to  be  wedded  to  God  by 
the  holy  veils  ».  The  other  way,  viz.  the  extended  pall,  seems  to  have  been  intro- 
duced later  ;  it  was  especially  in  use  in  our  countries  during  the  Middle  Ages. 


THE   SACRAMENT   OF   MARRIAGE  20I 

This  velatio  and  this  blessing  took  place  only  at  first  marriages  ;  those 
who  were  married  again  were  deprived  of  them.-for  the  Church  looked  with 
no  favour  on  second  marriages,  regarding  them  as  less  perfect,  and  less 
representative  of  the  singular  union  of  Christ  with  the  Church,  His  sole 
spouse  (')I  The  blessing  was  omitted  whenever  it  was  a  case  of  a  second 
marriage  for  either  of  the  parties  (*)  ;  the  blessing  then  was  refused,  and 


This  rite  was  also  adopted  in  the  ceremonies  for  the  consecration  of  virgins,  to 
symbolise  their  spiritual  marriage  with  Christ ;  this  idea  of  the  spiritual  marri- 
age appears  again  in  the  ring  that  is  put  on  their  finger,  and  the  crown 
that  is  put  on  their  head,  ceremonies  also  borrowed  from  the  rites  of  marria- 
ge. They  are  wrong,  then,  who  take  the  ceremony  of  the  pall  in  a  religious 
profession,  as  a  symbol  of  death  to  the  world  (cf.  also  Thurston,  1.  c  ,  p.  707). 
Traces  of  the  vdatio  in  the  second  way  are  perhaps  also  to  be  found,  in  the  rite 
formerly  prescribed  by  the  Pastorale  Bnig.,  according  to  which,  the  priest  had 
to  put  the  stole  in  the  form  of  a  cross  upon  the  heads  of  the  married  couple. 

4.  According  to  the  Salisbury  Manual,  p.  68,  pallium  «  teneant  quatuor  clerici 
ad  quatuor  cornua,  in  supcrpelliceis  »  ;  the  pallium  is  to  be  extended,  and  the 
bridegroom  and  bride  are  to  kneel  under  it  from  the  beginning  of  the  canon, 
after  the  Sanctus.  Cf.  also  the  Sarum  Manual,  p.  22"'. 

1.  The  English  rituals  restrict  the  prohibition  against  repeating  the  blessing 
in  the  case  of  second  marriages  solely  to  the  words  (in  the  prayer  Deus  quipotes- 
tate  virtutis)  :  «  Deus  qui  tam  excellenti  mysterio  conjugalem  copulam  conse- 
crasti,  ut  Christi  et  Ecclesiae  sacramentum  consecrares  in  toedere  nuptiarum  »  ; 
because,  as  they  argue,  in  that  form  of  blessing  precisely  «  agitur  de  unitate 
Christi  et  Ecclesiae,  quae  figuratur  in  primo  matrimonio,  non  autem  in  secun- 
do  ».  Thus  the  Salisbury  Manual,  p.  71  s.,  compared  with  the  York  Manual, 
p.  35,  and  the  Sarum  Manual,  p.  23*. 

They  also  limit  the  said  prohibition  to  the  case  in  which  the  blessing  was 
actually  given  in  the  former  marriage,  and  they  do  not  forbid  the  blessing  of  a 
widower  or  widow  not  yet  blessed.  This  is  in  conformity  with  c.  3,  X,  IV,  21  : 
«  the  man  and  the  woman  who  contract  second  marriages  ought  not  to  receive 
the  blessing  of  the  priest ;  as  they  have  been  already  blessed  once,  this  blessing 
should  not  be  repeated  ».  Hence  it  appears  that  the  here  invoked  reason  of  refus- 
ing the  blessing  is  the  reverence  due  to  the  blessing  already  given.  Thus  the 
Glossa  Ordinaria  a  proposof  this  adds,  in  reference  to  the  word  Iterari,  that  to 
have  given  the  blessing  would  have  seemed  to  say,  c  that  this  sacrament  had 
not  as  yet  been  conferred,  at  least  in  an  absolutely  efficacious  way  ;  which 
would  have  been  injurious  to  it  »  (Cf.  Gillmann,  Die  Siebcnzahl  der  Sacramente 
bei  den  Glossatoren  des  Gratianisclien  Dekrets,  Mainz,  1909,  p.  30,  note  4 ;  Der 
Katholik,  1909,  II,  p.  207,  note  2). 

2.  That  the  previous  blessing  of  one  or  the  other  party  sufficed  for  the  refusal 
of  the  blessing  of  both,  is,  according  to  Hostiensis  to  be  found  in  this :  «  per 
carnem  alias  benedictam,  caro  non  benedicta,  cum  qua  jungitur,  benedicitur  ;  in 
commixtione  enim  corporum,  per  quam  efficiuntur  una  caro  vir  et  mulier,  caro 


202  THE  SACRAMENT   OF   MARRIAGE 

likewise  the  velaiio  that  accompanied  it  .Later  on,  the  custom  was  introduc- 
ed in  some  places,  of  giving  the  blessing  and  the  velatio  to  widowers  who 
married  a  young  girl,  but  not  to  widows  who  married  again  ;  the  reason 
being  that  the  prayers  of  the  blessing  and  the  velatio  referred  specially  to 
the  woman  (*). 

7.  Then  the  bridegroom  received  the  pax  from  the  celebrant,  and  gave  it 
to  his  wife,  but  neither,  he  nor  she,  gave  it  to  any  other,  as  the  Rituals 
prescribe  ;  the  Salisbury  Manual,  p.  74,  adds  :  «  sed  statim  diaconus  vel 
clericusa  presbytero  pacem  accipiens,  ferat  aliis  sicut  solitum  est ». 

8.  The  Mass  finished,  then  was  the  moment  for  the  exhortation  which  the 
priest  had  to  give  on  the  subject  of  chastity  to  be  observed  in  marriage, 
and  in  particular  on  the  subject  of  continence  to  be  practised  on  the  first 
and  even  second  and  third  night  after  the  wedding.  Then  the  couple  left 
the  church  wearing  crowns  on  their  heads:  this  custom  had  a  special  import 
among  the  Greeks,  and  again  it  was  followed  only  in  first  marriages,  as 
Martene  declares  at  some  length,  o.  c,  p.  609  (^).  Cf.  Probst,  Die  altesten 
Romischen  Sacramentarien,  p.  130  s. ;  Chardon,  o.  c.  p.  156  ss.  and  156 
ss.  0). 

9.  It  was  an  ancient  custom  in  many  places,  for  the  priest  to  conduct  the 
married  couple  to  their  dwelling.  Arrived  there,  he  blessed  the  bread  and 
wine  and  tasted  it  first ;  he  also  blessed  the  bedroom  and  the  newly-married 

benedicta  trahit  ad  se  carnem  non  benedictam,  sicut  oleum  sanctum  trahit  ad 
se  oleum  admixtum  non  sanctum,  et  sic  totum  fit  sanctum  ».  Thus  the  York 
Manualf  p.  36. 

1.  Cf.  Glossa  ordinaria,  1.  c. ;  Martene,  1. 1,  P.  2,  c.  IX,  art.  i,  no  7.  The  Salis- 
bury Manual,  p.  73  s.,  vindicates  this  latter  practice  thus  :  <  Salvatur  et  aliquo 
modo  significatio  in  ordine  ad  primas  nuptias,  quia  Episcopus,  etsi  unam  Eccle- 
siam  habeat  sponsam,  habet  tamen  plures  personas  desponsatas  in  una  Ecclesia  ; 
sed  anima  non  potest  esse  sponsa  alterius  quam  Christi,  quia  cum  daemone  forni- 
catur,  nee  est  matrimonium  spirituale :  et  propter  hoc,  quando  mulier  secundo 
nubit,  nuptiae  non  benedicuntur  propter  defectum  sacramenti  ».  The  other  Ri- 
tuals mentioned  above  speak  in  like  terms. 

2.  This  author  notes  that  the  custom  of  not  crowning  those  who  married 
again,  was  abolished  as  time  went  on,  and  that  crowns  were  worn  even  in  second 
marriages ;  only,  if  one  of  the  contracting  parties  happened  to  be  celibate,  and 
the  other  widowed,  the  former  wore  the  crown  on  the  head,  and  the  latter  on 
the  shoulder.  Martene  quotes  in  this  connection  the  words  of  Theodore  Stu- 
dita,  who  rails  bitterness  at  this  practice  :  «  Where  at  length  will  they  put  the 
crown  on  one  who  marries  a  third  time  ?  On  the  hand  or  on  the  knee,  since  they 
crown  the  shoulder  of  the  widow  who  marries  a  second  time  ?  » 

3.  It  must  be  noticed,  according  to  St.  Chrysostom,  that  the  crown  was  a 
symbol  of  victory  won  over  the  flesh,  «  weil  sie  (betrothed  virgins)  von  der 
bosen  Lust  nicht  iiberwunden  zum  Brautgemache  schritten  ». 


THE  SACRAMENT  OF  MARRIAGE  203 

couple  sitting  or  lying  on  the  bed,  as  attest  the  Rituals  quoted  by  Martene, 
p.  635  and  637,  and  in  several  other  places  ('). 

After  having  first  tasted  the  blessed  bread  and  wine,  he  handed  them 
to  the  bridegroom,  who  in  his  turn  tasted  them,  and  then  passed  them 
on  to  the  bride,  whilst  the  priest  addressed  to  him  the  following  words,  or 
something  similar  :  «  Peter,  take  and  give  to  your  wife,  giving  her  good 
part  and   loyalty  that  you  would  have  her  give  to  you  >  (*). 

Note  1.  We  may  here  quote  the  purport  of  the  rescript  of  Nicholas  I,  in 
reply  to  consultations  addressed  to  him  from  Bulgaria  (866),  at  least  as 
far  as  concerns  the  rites  of  betrothals  and  m.arriages  :  almost  all  the 
ceremonies  enumerated  above  are  mentioned  in  it  :  «  After  the  betrothal, 
which  is  a  promise  of  future  marriage,  made  with  the  consent  of  the  con- 
tracting parties  and  of  those  who  have  authority  over  them;  after  the  future 
husband  has  given  the  earnest-money  to  his  future  wife,  betrothing  himself 
to  her  by  putting  the  ring  on  her  faith- finger  ;  after  he  has  given  to  her 
the  dowry  agreed  upon  and  the  deed  which  gives  her  legal  claim  to  it,  and 
all  this  in  the  presettce  of  the  friends  of  both  parties  :  then,  sooti,  or  at  a 
convenient  time....  they  are  both  conducted  to  the  wedding. 

And  first  of  all,  they  are  led  to  the  church  of  our  Lord,  bearing  the 
offerings  they  are  to  make  to  God  by  the  hands  of  the  priest,  and  thus  they 
receive  finally  the  blessing  and  the  heavenly  veil....  He  however  who  con- 


1.  This  blessing  of  the  bed-chamber  and  the  bed,  and  of  the  married  persons 
themselves,  a  blessing  wich  from  the  XI  century  was  in  use  in  our  countries, 
is  probably  related  to  the  ancient  copulatheoria,  as  we  have  pointed  out  in  no 
60  ;  it  was  also  given  against  witchcraft,  which  was  then  believed  to  be  very 
common,  as  we  have  already  observed  above,  n"  136,  in  a  note.  On  this  subject, 
see  Martene  ,  o.  c,  and  Franz,  o.  c,  p.  178  ss. 

2.  Cf.  Martene,  o.  c,  p.  639,  compared  with  p.  635,  636  and  643  ;  see  also  De 
MoLEON,  o.  c,  p.  631.  This  was  done  on  entering  the  house  to  symbolise  the 
unity  and  intimacy  which  were  henceforth  to  exist  between  the  wedded  couple  ; 
but  in  other  places  a  similar  ceremony,  over  and  above  this,  took  place  in  the 
church,  towards  the  end  of  the  Mass.  It  is  not  improbable  that  this  latter 
distribution  of  blessed  bread  and  wine,  may  have  been,  by  way  o(  cidogia,  a 
participation  in  the  sacrifice  of  the  Mass,  i.  e.,  a  trace  of  the  eucharistic  commu- 
nion, such  as  it  seems  formerly  to  have  been.  Cf.  Martene,  o.  c,  p.  6io; 
Chardon,  o.  c  ,  p.  611  s.  This  explanation,  which  is  confirmed  by  the  text  of 
several  rituals,  in  which  it  is  said  that  the  priest  gives  the  consecrated  host, 
seems  to  us  preferable  to  that  of  De  Moleon,  1.  c,  and  of  Bocquillot,  o.  c,  p. 
424  s.,  who  see  in  this  rite  a  trace  of  the  agape.  As  to  the  rite  of  tasting  the  bread 
and  wine,  or  the  wine  alone,  as  a  mark  of  union,  and  the  preservation  of  this 
practice  in  many  parts  of  Germany,  in  Russia  and  in  Greece,  cf.  Franz,  o.  c, 
I,  p.  381-284;  Ecclcs,  Review,  t.  XLV  (1911),  p  486  ss.  and  p.  738  s. 


204  THE  SACRAMENT   OF  MARRIAGE 

tracts  a  second  marriage  does  not  receive  the  veil.  After  that,  they  leave 

the  church,  wearing  crowns  on  their  heads,  which  crows  are  always  kept 

f2g         in  ihe  church  according  to  custom » (*). 

Analogy  with     2.  If  one  considers,  only  for  an  instant,  the  ancient  religious  ceremonies 

nies  '^^^*"'°'i   described  above,  the  analogy  between  them  and  the  ancient  matrimonial 

in  use  at     rites  of  the  Romans  is  evident,  especially  in  the  celebration  of  marriages 

Rome.       jjy  confarreation.  These  pagan  rites  have  been  almost  entirely  adopted 

by  the  Church,  w^ich  has  added  a  Christian  form  and  signification  to 

them. 

Thus,  as  we  have  already  seen,  with  the  Romans  also  the  hands  of  the 
betrothed  were  united  through  the  medium  of  the  pronuba,iov  the  giving  of 
the  consent ;  the  nuptial  ring  was  put  on,  sacrifices  were  offered,  which 
have  been  replaced  by  the  sacrifice  of  the  Mass  (*)  ;  moreover  it  was  cus- 
tomary for  the  future  bride,  during  the  time  that  preceded  the  marriage, 
to  wear  on  her  head  a  red  veil  (hence  the  term  :  niihere),  and  a  crown  of 
flowers  (').  Even  the  prescription  to  celebrate  the  second  marriages  of 
widowers,  and  especially  of  widows,  with  less  pomp,  is  to  be  found  in 
Roman  law.  In  fact  «  the  solemnities  of  strict  marriage  were  only  observed 
in  the  case  of  marriage  of  a  young  girl ;  they  were  not  used  for  the 
marriages  of  widows,  which  were  always  looked  upon  with  a  certain 
amount  of  disfavour  (*).  «  That  is  not  all.  The  custom,  which  we  have 
mentioned  above,  of  conducting  the  married  couple  to  their  dwellmg,  and 
of  blessing  their  bed-chamber,  seems  to  be  derived  from  the  ancient  nuptial 
procession  of  the  Romans,  a  ceremony  which  occupied  so  important  a  place 
in  their  ancient  law.  Finally,  as  regards  the  custom  of  blessing  the  bread 
and  wine,  and  the  tasting  it  on  the  deductio  in  domum,  one  is  inclined  to 
think,  that  this  also  is  a  Christian  adaptation  of  a  similar  rite  in  vogue 
among  the  Romans,  on  the  occasion  of  the  same  procession  (see  above, 
n"  83),  or  an  adaptation  of  the  usage  formerly  observed  in  marriages  by 
confarreation,  during  the  celebration  of  which  the  newly-wedded  couple 
partook  of  a  loaf  of  bread,  in  sign  of  union  and  common  life  ;  unless  one 
prefers  to  say  that  this  usage  has  been  borrowed  from  the  practices  of  the 


i.Seec.  3,  C.  XXX,  5. 

3.  «  It  is  interesting  to  verify  the  fact  that  the  nuptial  ritual  described  by  Pope 
Nicholas,  is  no  other  than  the  ritual  of  the  ancient  Romans,  minus  the  sacrifice, 
or  rather  with  the  substitution  of  the  Mass  for  the  idolatrous  sacrifice  ». 
Duchesne,  o.  c,  p.  433  ;  collato  Thurston,  1.  c,  p.  704. 

3.  See  Darenbbrg  et  Saglio,  o.  c,  W°  Matrimonium,  III',  p.  1655;  Glasson,  o. 
c,  p.  i6g  ;  and  above,  no  83. 

4.  Darenberg  et  Saglio,  1.  c,  p.  1654  s.  ;  Glasson,  o.  c,  p.  168,  compared 
with  Sehling,  Die  Unterschndung,  p.  7  ;  see  also  above,  under  no  83. 


THE  USE  OF  MARRIAGE  205 

Germans  ;  but  whatever  may  be  the  origin  of  the  ceremony,  its  significa- 
tion is  the  same  (*). 

Section  III 

THE  MARRIAGE  BOND 

This  section  is  divided  into  three  chapters  :  the  first  treats 
of  the  nature  of  the  marriage  bond  ;  the  second  of  its  effects  ; 
the   third  of  its  attributes,  to  wit,  unity  and  indissolubility. 

Chapter  I. 

NATURE  OF  THE  MARRIAGE  BOND. 

The  marriage  bond,  as  we  have  already  said  above,  is  a  moral  Division. 
bond  which  the  contract  of  marriage  establishes  between  married 
persons,  and  which  unites  them  in  a  union  so  strict  that  they 
form  but  one  single  principle  in  the  procreation  and  education  of 
children.  That  which  constitutes  this  bond,  which  forms  its 
strands,  are  the  different  rights  and  duties  of  those  who  are 
bound  by  it.  In  the  first  place,  rights  and  duties  that  are  mutual  ; 
married  people  are  in  fact  obliged  :  a/  to  the  conjugal  duty  (^)  ; 
b/  to  coha.bitation  ;  c/  to  mutual  love  and  support  under  the  direc- 
tion of  the  husband.  Next  come  rights  and  duties  in  respect  of 
the  children  :  education  and  training. 

Article  I.  The  conjugal  duty. 

Two  paragraphs  :  the  first  showing  the  lawfulness  of  the  sexual 
act  between  married  persons  ;  the  second  delimiting  their  rights 
and  duties  on  this  head. 


1.  In  Darenberg  et  Saglio,  1.  c„  p.  1657,  there  is  given  a  representation 
of  a  Roman  marriage  which  seems  to  indicate  that  the  pallium  was  extended 
over  the  bride  and  bridegroom  during  the  ceremony. 

2.  The  apostle  St.  Paul  constantly  uses  the  expression  :  conjugal  duty,  to 
designate  in  a  more  becoming  way  the  copula  carnalis,  the  sexual  intercourse 
between  married  persons,  an  intercourse  which  constitutes,  as  we  shall  see,  one 
of  the  primary  obligations  of  marriage. 


2o6  THE  USE   OF  MARRIAGE 

Paragraph  I.  LAWFULNESS  OF  THE  SEXUAL  ACT  BETWEEN 
MARRIED  PERSONS. 

First  proposition.  Objectively  speaking,  sexual  relations,  suppos- 
ing them  apt  for  the  purposes  of  generation,  are  of  their  nature  lawful 
between  married  persons,  and  between  them  only. 

i25. 

Between  mar-     Proofs  and  explanations. 

ried  persons, 

sexual  Major.  Every  action,  considered  in  itself,  is  lawful,  as  long  as 

^heir*nature  ^^  remains  of  its  nature,  directed  to  its  proper  end. 

apt  for  gener-     Minor.  But,  between  married  persons,  all  the  relations  which  are 
atton,  are 
lawful,      of  their  nature  apt  for  generation,  fulfil  this  condition,  to  the  exclusion 

of  others.  Therefore. 

The  major  of  this  syllogism  is  clear.  As  St.  Thomas  teaches  (2*  2", 
qu.  153,  art.  2) :  «  "What  constitutes  sin  in  human  acts,  is  precisely 
that  these  acts  are  contrary  to  the  order  of  human  reason.  Now, 
it  is  proper  to  human  reason  to  direct  each  thing  in  a  fitting  man- 
ner towards  its  end  ».  It  suffices  however,  for  the  lawfulness  of 
the  act,  that  it  should  be,  of  its  nature,  ordained  towards  its  end, 
or,  in  scholastic  language  :  per  se.  For,  «  it  is  not  that  which  may 
happen  per  accidens  in  a  given  case,  which  furnishes  the  measure 
of  good  and  evil  in  human  acts.  It  is  the  genus,  the  nature  itself 
of  the  act,  which  we  must  consider  in  its  entirety  »  ('). 

To  proceed  to  the  minor. 

\ .  The  end  towards  which  the  sexual  act  tends,  is  evidently  the 
propagation  of  the  species.  This  act,  considered  in  itself,  has  no 
other  end.  Others  assign  to  it,  it  is  true,  other  ends  besides,notably 
the  appeasement  of  passion.  But,  strictly  speaking,  that  is  not  the 
end  towards  which  the  act  of  the  flesh  tends,  much  rather  is  it 
the  means  to  attain  that  end.  Beyond  its  proper  end  :  the  end 
of  procreation,  there  can  only  be  question  of  ends  improperly  so 
called,  and  altogether  subordinate  to  the  true  end  (*). 

And  in  fact,  what  does  the  very  difference  between  the  sexes, 
and  the  respective  disposition  of  the  genital  organs  imply  ;  what 
is  the  signification,  in  this  matter,  of  the  analogy  with  the  ani- 
mals, unless  it  be  that  sexual  relations  have  but  one  proper,  one 
single  end  :  the  propagation  of  the  species  ? 


I.  C.  Gent.,  1.  Ill,  chap.  133. 

a.  See  above,  under  nos  53  and  the  following. 


THE  USE  OF  MARRIAGE  207 

And  does  not  common  sense  itself  testify  to  this  truth  (')  ?  The 
appeasing  of  passion  is  certainly  not  the  proper  end  of  the  work 
of  the  flesh.  In  fact,  passion,  which  is  no  other  than  the  desire  of 
sensual  pleasure,  is  enkindled  in  man  precisely  to  impel  him  to 
the  act  which  brings  with  it  that  desired  pleasure.  Passion  is, 
then,  a  means  designed  by  the  Creator  to  ensure  the  act,  and 
thereby  to  attain  the  end.  How  then  could  this  end  be  to  appease 
the  senses  ?  No,  the  end  is  quite  another  thing  :  it  is  the  propa- 
gation of  life  and  the  education  of  children.  Sensual  pleasure  and 
the  appeasing  of  the  senses  are  here  only  means,  as  we  have  said 
under  n°  53,  a  propos  of  the  marriage  itself. 

2.  The  sexual  act  then  must  be  ordamed  towards  its  end  :  the 
propagation  of  the  species.  Let  us  consider  for  a  moment  this  end. 
The  propagation  of  the  species  implies  not  only  generation,  and  in 
consequence,  relations  of  their  nature  compatible  with  fertilisation  ; 
but  besides  that,  education,  as  we  have  already  asserted  above, 
n°  49.  For  that  reason  also  it  is  necessary  that  man  and  woman 
should  be  united  by  the  conjugal  bond  :  in  fact  the  education  of  the 


I.  St.  Thomas  {a»  3*,  qu.  153,  art.  3)  speaks  in  the  same  sense:  «  As  the 
pleasures  of  the  table  are  destined  to  the  preservation  of  the  life  of  the  individual, 
so  sexual  pleasures  are  destined  to  preserve  the  life  of  the  species...  Conse- 
quently :  as  the  former  pleasures  may  be  lawful,  if  they  are  taken  in  moderation 
so  as  to  be  salutary  to  the  body,  so  the  latter  may  be  lawful,  if  they  are  taken 
in  moderation  according  to  the  prescribed  order,  so  as  to  procure  the  Propaga- 
tion of  the  species  ». 

See  also  C.  Gentes,  1.  Ill,  chap.  123  :  «  The  emission  of  the  seed  should  have  in 
view  generation,  which  is  the  purpose  of  the  intercourse  between  the  sexes.  But 
it  is  not  enough  to  beget  the  child  ;  it  must  be  nourished,  failing  which,  it  dies. 
That  is  the  reason  why  the  emission  of  the  seed  sJtould  tend,  of  its  nature,  towards  the 
generation  and  education  of  the  child  ».  And  further  on,  chap.  123:  «  Alone,  of 
all  natural  acts,  generation  tends  to  the  good  of  the  species  ;  nutrition...  con- 
cerns the  individual,  but  generation  preserves  the  species  itself  ».  And  finally, 
in  chap.  126  :  «It  is  in  the  order  of  things  that  the  sexual  act  should  be  performed 
in  the  interests  oithe  begetting  and  the  education  of  children  ». 

For  numerous  other  testimonies  in  the  same  sense,  we  refer  our  readers  to 
the  Collat.  Brug.,  t.  VI,  p.  472  and  the  following,  t.  VII,  p.  476  and  the  following  ; 
to  EsMEiN,  o.  c,  I,  p.  241  and  249,  and  the  following  ;  to  the  Anal.  Eccl.,  1903, 
p.  231  and  the  following  ;  to  Sehling,  Die  Unlet scJteidung,  p.  7  and  17,  For  the 
contrary  opinion,  see  Treub,  o.  c,  p.  36,  who  brings  forward  the  quotation  from 
Dr.  Pierson  :  «  The  beautiful  union  of  man  and  woman  may  be  a  source  of  new 
life  ;  it  may  also  not  be  :  it  has  its  reason  for  existence  in  itself  ». 


2o8  THE   USB  OF  MARRIAGE 

children  requires,  of  itself,  the  cooperation  and  the  protracted 
cares  of  the  father  and  mother,  and  this  can  only  be  obtained, 
naturally  and  as  a  general  rule,  by  the  mutual  obligation  of  the 
parents  to  a  common  life.  There  are  many  cases,  it  is  true,  where 
the  work  of  education  could  be  ensured  outside  of  marriage  :  as 
is  the  case  with  rich  and  well-disposed  parents.  But,  then  it  is 
chance  and  not  the  nature  of  things,  which  brings  this  about  ;  this 
case  is,  as  they  say,  per  accidens  ;  and  it  is  the  same  in  the  inverse 
case,  when  the  father  and  mother  find  it  impossible  to  bring  up 
their  children  properly,  owing  to  their  poverty. 

We  may  therefore  look  upon  our  first  proposition  as  proved. 
Objectively  speaking,  all  sexual  relations,  intrinsically  apt  for 
generation,  are  of  their  nature  lawful  between  married  persons  and 
between  them  only  (*). 

Let  us  here  examine  our  view  more  closely.  What  do  we  mean 
by  relations  intrinsically  apt  for  generation  ?  When  are  the  relations 
between  married  people  normal  ?  They  are  such  when  the  act 
itself  tends  of  its  nature  to  generation. 

The  act  itself,  we  say  :  we  need  not,  then,  concern  ourselves 
with  the  organs  further  required  by  the  woman  for  fertilisation, 
but  only  with  those  that  are  indispensable  for  rendering  the 
relations  complete  (^).  This  act  should  tend  to  procreation  of  its 
nature,  i.  e.  in  the  light  of  the  manner  in  which  it  is  performed, 
and,  once  more,  without  attaching  any  importance  to  accidental 
circumstances,  and  to  those  peculiar  to  individuals,  which  may 
render  the  act  itself  unfruitful  ('). 


1.  We  intend  here  only  the  essential  lawfulness  of  the  normal  relations 
between  married  persons,  without  speaking  of  the  accidental  malice  which  may 
sometimes  supervene,  by  reason  of  certain  circumstances.  See  later,  no  134. 

2.  For  this  reason,  conjugal  relations  are  forbidden  to  eunuchs.  They  are 
logically  driven  to  admit  the  contrary,  who  hold  the  view  that  the  appeasing 
of  passion  is  one  of  the  ends  of  the  sexual  act,  and  an  end  not  subordinate  to 
that  of  generation.  In  fact,in  the  case  of  the  eunuch,  the  relations  are  possible  ; 
and  although  they  are  intrinsically  barren,  and  incapable  of  inducing  fertili- 
sation, they  can  perfectly  appease  the  senses.  See  on  this  point,  no  54. 

3.  «  The  natural  morality  of  human  acts  must  not  be  measured  by  the  stand- 
ard of  the  accidental  circumstances  which  accompany  them  in  such  or  such  a 
case  ;  it  depends  upon  the  nature  of  the  act  itself,  taken  by  itself  ».  S,  Thomas, 
C.  Gent.,  1.  Ill,  no  133. 


THB   USE   OF  MARRIAGE  209 

Second  proposition.  Considering  the  sexual  act  no  longer  in 
itself  and  objectively,  but  with  reference  to  the  married  persons  (')  them- 
selves, it  is  necessary  in  order  that  the  act  may  be  lawful,  that  these 
should  have  the  intention  of  conforming  to  the  end  of  procreation,  at 
least  negatively. 

Explanation  and  proof  (^). 

1.  They  commit  a  positive  fault,  who,  in  their  marriage  relations,    As  regards 
positevely  exclude  from  their    intention    the    natural  end  of  the  thereUitions 

intercourse  between  the  sexes,  and  avoid  it  as  a  mediate  end  as  «^^  lawful,  so 

,,  ,.  long  as  tJte 

well  as  an  mimediate  one.  end  of  pro- 

That  this  positive  exclusion  of  the  proper  end  (')  constitutes  a  real  '^^fositivdT^ 
fault,  is  abundantly  shown  by  all  that  we  have  said  above.  Never-     excluded. 
theless,  this  fault  will  be  but  a  light  one,  when  the  act  itself  is  pro- 
perly performed,  unless,  of  course,  the  parties  direct  their  inten- 
tion  to  the  particular  purpose  they  have  in  view,  as  to   their 
ultimate  end  (*). 

2.  That  the  conjugal  relations  between  married  persons  may 
be  perfect,  they  must  have  the  explicit  intention  of  procreation,  for 
their  proper  and  principal  end.  Then  only  does  the  end  of  the  act 
perfectly  coincide  with  the  end  of  the  agents.  This  act  will  not  be 
less  perfect,  if  it  is  accompanied  by  sensible  pleasure,  even  though 
the  parties  have  this  pleasure  in  view,  and  seek  it  as  a  secondary 
end. 

3.  For  the  sexual  act  to  be  simply  lawful,  it  suffices  that  it  should 
be  performed  for  any  worthy  purpose  whatsoever,  so  long  as  its 


1.  We  consider  here  the  subjective  side  of  these  relations,  only  from  the 
point  of  view  of  their  conformity  with  the  objective  end  of  generation  ;  later, 
under  no  135  ss.,  we  shall  speak  of  other  subjective  circumstances  which  may 
vitiate  the  conjugal  act,  prescinding  from  the  end  pursued. 

2.  For  further  proof  and  explanation,  see  above,  under  no  54. 

3.  It  is  one  thing  :  positively  to  exclude  generation,  and  another  :  to  desire 
that  it  should  not  ensue.  It  is  another  thing  again  :  to  perform  an  act  while 
removing  the  end,  or  to  abstain  from  it  to  avoid  that  end.  There  is  fault  only, 
when  the  act  is  performed  with  the  intention  of  positively  excluding  its  natural 
end. 

4.  If  in  an  act,  the  definite  value  of  an  ultimate  end  is  attributed  to  a  partic- 
ular end  in  view,  to  which  the  agent,  in  consequence,  directs  his  intention,  it  is 
clear  that  a  grave  fault  is  committed.  See  Collat.  Briig.,  t.  X,  p.  43?  ss.,  V, 
p.  171.  14 


210  THE  USE   OF  MARRIAGE 

proper  end  is  not  positively  excluded.  Every  positive  act  of  the 
will  implying  exclusion  is  forbidden  ;  but  it  is  not  forbidden  simply 
to  prescind  from  the  end  of  procreation. 

In  fact,  so  long  as  there  is  only  abstraction  and  not  positive 
exclusion, it  cannot  be  said  that  the  parties  act  in  positive  defiance 
of  the  order  ordained  by  God,  or  that  they  turn  aside  the  sexual 
act  from  its  end,  or  that  they  confine  themselves  to  enjoyment 
considered  as  an  end  in  itself.  The  proper  end  of  the  act  remains 
intact,  and  they  in  no  wise  exclude  it ;  but  they  are  not  arrested 
by  it ;  they  do  not  consider  it.  This  is  not  forbidden  ;  the  more  so, 
that  by  not  excluding  procreation,  they  admit  it,  at  least  impli- 
citly, and  cause  the  conjugal  relations  to  converge  towards  it. 
Further,  according  to  the  teaching  of  the  Salmantic.  (o.  c, 
Treatise  IX,  Chap.  Ill,  point  3,  n°  24)  :  «  each  time  that  in  the 
matrimonial  contract  (or  the  sexual  act),  abstraction  is  made 
from  the  proper  end  of  marriage,  because  the  parties  have  not 
thought  of  it,  or  do  not  care  about  it,  without,  however,  positive- 
ly excluding  it,  the  contract  (or  the  act)  remains  directed 
towards  its  end.  In  fact,  the  parties,  by  not  excluding  it,  admit  it 
implicitly,  and  pursue  the  intrinsic  end  of  the  act,  without  thinking 
of  it,  by  the  very  fact  that  they  perform  it.  Thus  it  is  that,  although 
the  marriage  or  the  conjugal  duty  be  sought  for  other  motives, 
their  proper  end  is  none  the  less  safeguarded  ».  Cf.  also  Ballerini- 
Palmieri,  o.  c,  VI,  n°'^55i  and  552. 

For  the  same  reason  Bouquillon  says  (Theol.  mor.  fund.,  2""* 
ed.,  1890,  n°  356) :  that  if  anyone  perfomis  an  act,  having  in  view 
an  intermediate  and  a  subordinate  end,  prescinding  from  its  ulti- 
mate end  and  abstaining  from  referring  the  action  to  it,  he  does 
not  thereby  do  evil;  rather,  does  he  implicitly  cause  his  act  to  tend 
towards  that  end. 

The  acts  in  question  are  therefore  licit,  but  do  not  attain  all  the 
perfection  of  which  they  are  capable  ;  in  the  same  sense,  the 
Salmantic,  1.  c,  n°  33,  assert  «  that  it  is  lawful  to  take  mode- 
rate nourishment,  even  though  one  eats  simply  for  pleasure, with- 
out thinking  of  the  proper  end  of  the  act,  but  at  the  same  time, 
without  (positively)  excluding  it  ».  See  also  Bouquillon,  o,  c, 
n°  355  (')• 


I,  €  To  seek  the  pleasure  proper  to  an  act,  is  not  equivalent  absolutely,  in 


THE  USE  OF  MARRIAGE  211 

Corollary.  Those  relations  are  licit,  although  less  perfect,  that 
have  in  view  appeasement  only  of  the  senses,  or  sensible  pleasure 
only.  Prescinding  from  every  other  end.  They  are  licit,  we  say, 
objectively  and  in  themselves,  for  they  are  not  opposed  to  any 
law  or  precept  (').  There  is  therefore  no  question  of  a  fault  being 
excused  by  the  objective  good  faith  of  the  parties,  as  is  taught  by 
Aertnys,  Theol.  Mar.,  II,  no  482  ;  Pruner,  o.  c,  I,  n°  875,  and  by 
others  also. 

We  understand  the  proposition  condemned  by  Innocent  XI  in 
an  exclusive  sense,  and  not  in  the  sense  of  a  simple  abstraction  (*). 

Third  proposition.  Concerning  carnal  acts  not  consummated, 
mutual  or  solitary  : 

1 .  Mutual  excitations,  provided  they  are  not  equivalent  to  pollution^  The  nature  of 
are  permissible  between  married  persons.  And  if  in  certains  cases  they  consummated 
are  intrinsic  causes  (causae  ^tT  so)  of  pollution,  they  remain  lawful,  acts  between 
provided  there  is  a  grave  and  urgent  motive  for  them,  that  there  is  no  sons,  and  how 
desire  of  pollution,  and  no  danger  of  consenting  to  it.  ^"-^  lawful. 

2.  Solitary  excitations  are  also  lawful,  so  far  as  they  have  relation 
to  the  complete  act,  by  way  of  preparation  or  completion  ;  without  this 
relation,  they  constitute,  in  our  opinion,  grave  sins,  even  when  there  is 
no  danger  of  pollution. 

Explanation. 

Ad  I"'.  Actus  non  consummati  mutui  sponte  sua  ordinantur  ad 
copulam  ejusque  censentur  inchoationes  :  et  sic  mediate  referun- 


itself,  to  performing  a  bad  act  by  reason  of  the  end  pursued.  This  way  of  acting 
is,  on  the  contrary,  entirely  conformed  to  sound  reason,  provided  that  the  will 
then  follows  a  real  good,  and  does  not  confine  itself  to  the  pleasure  sought  as  to 
an  end  in  itself.  However,  this  point  of  view  less  noble,  inactions  otherwise 
quite  regular,  is  an  indication  of  a  rather  low  moral  standard,  capable  of  being 
raised  m  the  matter  of  the  final  outlook  ».  Th.  Meyer  :  Institutiones  juris  natura- 
lis,  Friburgi-Brisg.,  1885,  i^t  P.,  no  igi. 

I.  See  Ballerini-Palmieri,  o.  c,  nos  551-591,  against  the  Vindices  Alph., 
which  teach,  no  841  :  «  that  if  anyone,  in  the  acts  in  question  (sexual  act,  acts  of 
eating  or  drinking)  seeks  only  pleasure,  and  neglects  all  other  ends,  without  at  tlie 
same  time  excluding  them,  he  undoubtedly  acts  in  a  blameworthy  manner,  and 
commits  a  venial  sin  >  ;  that  in  order  to  be  in  fault,  «  it  is  not  necessary  to  seek 
pleasure  while  excluding  positively  every  other  end,.., but  that  it  suffices  to  pres- 
cind from  all  other  end  ». 

3.  <  Opus  conjugii  ob  solam  voluptatem  exercitum  omni  penitus  caret  culpa  ac 
defectu  veniali  ».  Denzinger,  o.  c,  no  1059, 


212  THE   USE  OF  MARRIAGE 

tur  ad  finem  generationis  :  supponuntur  autem  non  esse  tales 
actus  qui  aequivaleant  poUutioni,  seu  aequivalenter  constituant 
poUutionis  procurationem,  cum  eo  ipso  deficiat  ordinatio  ad  copu- 
1am  (•). 

Ex  ilia  ordinatione  intrinseca  ad  copulam  accipiunt  preefati  ac- 
tus objectivam  suam  legitimitatem  essentialem,  non  tantum  quando 
immediate  praecedunt  copulam  instantem  eamve  comitantur,  sed 
etiam  aliter.  Supponitur  uti  patet  copula  substantialiter  legitima, 
i.  e.  supponitur  earn  posse  exerceri  modo  de  se  generationi  ido- 
neo,  ita  ut  ab  hisce  actibus  non  consummatis  sint  prohibendi 
(nisi  opportune  judicentur  in  bona  fide  relinquendi)  conjuges, 
quorum  alteruter,  post  matrimonium  valide  initum  certam  con- 
traxerit  impotentiam  f ). 

Porro,  supposita  objectiva  legitimitate  essentiali,  possunt  des- 
cripti  actus  consummati  a/  vitiari  ex  parte  subjecti  operantis,  et  ex 
hoc  capite  potissimum  attendenda  est  circumstantia  finis,  juxta 
dicta  sub  n.  126  :  nempe  si  ad  honestatem  sufficit  ut  non  excludant 
conjuges  relationem  ad  copulam  et  ulterius  ad  finem  generationis, 
incurritur  inordinatio  positiva,  licet  levis  dumtaxat,  ab  illis  qui 
ideo  a  copula  abstinent  ne  proles  generetur. 

Possunt  iidem  actus  b/  accipere  objectivam  quamdam  inordi- 
nationem  accidentalem  ex  circumstantia  afficiente  ipsum  opus. 
Plures  sunt  hujusmodi  circumstantiae,  quarum  inordinatio  per 
causam  proportionatam  est  abstergenda,  ut  omni  ex  parte  liciti 
evadant  actus  illi. 

Talis  circumstantia  est  locus,  tempus,  et  maxime  id  quod  dicti 
actus  sunt  causa  per  se  vel  per  accidens  poUutionis  aut  distillationis.  Si 
causa  sunt  per  se  poUutionis,  sufficit. quod  ad  illos  uvgesX  gravis 
ratio.  Hujusmodi  ratio  esset  necessitas  vitandi  gravem  infideli- 
tatis  suspicionem,  vel  speciale  signum  amoris  praebendi,  notando 
eo  graviorem  rationem  requiri  quo  inhonestiores  sunt  actus 
admissi. 

Quodsi  actus  inter  conjuges  admissi  sunt  causae  per  accidens 
tantum  poUutionis,  quales  sunt  aspectus,  tactus,  oscula,  amplexus. 


I.  Hujusmodi  actus  plerumque,  licet  non  semper,  crit  copula  ante  seminatio- 
nem  abrupta,  cohibita  seminis  effusione  :  de  qua  fusS  disputavimus  apud  Collat. 
Brug.,  t.  VI,  p.  477  s.  et  473  ss.  Cf.  etiam  infra,  s.  147. 

3.  Collat.  Brug.,  t.  VII,  p.  478  s. 


THE  USE  OF  MARRIAGE  213 

minus  turpia  vel  obiter  facta,  non  inducunt  nisi  levem  inordina- 
tionem,  levi  de  ratione  abstergibilem  :  quae  ratio  inter  conjuges 
non  deerit  ('),  Item  levis  est  inordinatio,  pari  modo  abstergenda, 
quae  indicitur  ex  eo  quod  actus  illi  de  se  nati  sunt  provocare 
distillationetn  (*). 

Juvat  etiam  notare  in  descriptis  actibus  levem  posse  incurri 
inordinationem  ratione  Isesse  decentias  naturalis,  vel  ratione 
exclusi  finis  operis  in  intentione  operantis. 

Ad  2'".  Quod  spectat  actus  non  consummatos  solitaries  : 

a/  licent  illi  qui,  pro  adjunctis  in  quibus  admittuntur,  diriguntur  Quid  de  acti- 
ad  copulam  habendam  vel  copulam  habitam  perficiendam  :  et  ita 
posset  uxor  frigidioris  naturae  sese  excitare  tactibus  solitariis,  ad 
hoc  ut  perfecta  excitatio  venerea  correspondeat  momento  semina- 
tionis  virilis  (^)  ;  posset  etiam,  si  banc  perfectam  veneream 
excitationem  praevenerit  seminatio  viri,  inchoatam  excitationem 
pei*ficere  et  hac  ratione  actum  complere  et  integrare.  Cf.  Stohr, 
o.  c,  p.  501  s. 

b/  Utrum  autem  legitimari  possint  vel  saltem  a  gravi  excusari 
onines  actus  solitarii,  quatenus  in  illis,  ratione  ipsius  status  conju- 
galis,  semper  salvetur  ordo  ad  copulam,  solemnis  est  controversia, 

Plerique  Auctores  moderni  (*)  probabilem  censent  opinionem 
benigniorem,  ac  juxta  illam  a  gravi  culpa  immunes  declarant 
conjuges  descriptos  actus  admittentes,  modo  absit  periculum 
proximum  poUutionis  (*). 


1.  Cf.  Collat.  Brtig.,  t.  XIV,  p.  598  ss.  coll.  p.  535. 

2.  L.  c,  p.  673.  ss. 

3.  Ita  etiam  contigisse  novimus  cum  neo-nupta,  earn  nempe  non  posse  a  viro 
absque  gravi  dolore  cognosci  nisi  postquam  praevie,  iteratis  manipulationibus, 
vaginam  dilatandam  curaverit.  Cf.  Stohr,  o.  c,  p.  499-501,  ubi  notat  convenien- 
tiam  et  simultaneitatem  summae  libidinis  in  utroque  congrediente  multum  favere 
foecundationi. 

4.  Ita  inter  alios  :  Ballerini-Palmieri,  t.  VI,  n.  611 ;  Bucceroni,  o.  c.,  no 
1082 ;  Lehmkuhl,  o.  c,  II,  n.  840;  Noldin,  De  sexto  Prcecepto  et  usu  matrimonii, 
n.  88 ;  Caharel,  Agnologia  et  Asotologia,  Brioci,  1905,  p.  204  s. ;  Haine,  Theolo- 
gies moralis  Ekmenta,  Lovanii,  1894,  IV,  p.  233  ;  Matharan,  Casus  de  Matrimo- 
nio,  Parisiis,  1893,  "•  49^  j  Genicot-Salsmans,  o.c,  II,  n.  547  ;  Marc,  o.c,  II,  n. 
2113  ;  Aertnys,  Fasciculus,  n.  39,  quser.  3° ;  hi  tamen  tres  ultimi,  cum  S.  Alph., 
o.  c.,  I.  VI,  n.  936,  alteram  sententiam  probabiliorem  censent. 

5.  Dicitur  :  a  gravi  culpa,  quia  passim  illos  conjuges  levis  peccati  arguunt, 
ratione  intentionis  finem    operis  excludentis.  Addunt :    modo  absit  periculum 


214  THE  USE   OF   MARRIAGE 

Atvero  segre  possumus  admittere  sententiae  illius  probabilitatem 
nee  intelligere  valemus  quomodo,  ratione  ipsius  status  conjugalis, 
cohonestentur  quilibet  descripti  actus  in  eisque  ordinatio  ad  copu- 
1am  servetur  universim  ei  semper,  etiam  v.  gr.  in  casu  absentise 
quantumvis  diuturnae  conjugum  ab  invicem. 

Nimirum  sedulo  est  facienda  distinctio  inter  actus  mutuos,  a 
conjugibus  admissos,  et  actus  solitarios :  priores  sponte  sua  ordi- 
nanturad  copulam  tanquam  ad  suum  naturale  complementum,  et 
ideo  liciti  sunt  extra  adjuncta  actualem  connexionem  cum  copula 
inducentia,  etiam  ubi  copula  praevidetur  non  instituenda ;  posterio- 
res  contra  natura  sua  potius  ordinantur  ad  pollutionem,  et  ideo 
non  accipiunt  ordinationem  ad  copulam  nisi  ex  speciali  connexione 
ad  earn,  ratione  adjunctorum  in  quibus  admittuntur. 

Tunc  igitur  et  non  aliter  a  gravi  excusandi  sunt  conjuges  soli- 
tarios actus  ponentes,  quando  hi  actus,  pro peculiarihiis  adjundis  in 
quibus  admittuntur,  haberi  possunt  tanquam  copulam  perficientes 
eamve  praeparantes  (') :  uti  obtinet  in  casibus  modo  relatis,  et 
quemadmodum  etiam  non  sine  probabilitate  dices  obtinere  cum 
actibus  solitariis  admissis,  quousque  ad  invicem  praesentes  sunt 
conjuges  aut  facile  convenire  possunt  et  copulam  instituere. 

Attamen,  cum  benignior  sententia  a  pluribus  iisque  egregiis 
Auctoribus  habeatur  uti  probabilis,  potest  confessarius,  cui  intrin- 
seca  illius  improbabilitas  non  est  perspecta,   audoritate  extrinseca  niti 

ut  severiorem  solutionem  non  urgeat. 

m.  ^      , 

Quid  de  acti-     Nota.  Quod  spectat  adus  tnternos  extra  circumstantiam  copulae, 

bustnternts.  ^^  ^-^^  ordinatione  ad  illam,  puta  absente  comparte,  admissos  : 

possunt  conjuges  desiderare  copulam  futuram,  voluntate  probare 

copulam  habitam,  necnon  voluntate  sibi  complacere  in  copula  qua 

prsesenti  cogitata  (')  ;  objectum  namque  variorum  illorum  actuum 

est  res  licita.    Ab  hisce  autem    sedulo   distingue  commotionem 


poUutionis,  quia  pro  illis  actibus  solitariis  non  reperitur,  sicut  pro  mutuis, 
ratio  sat  urgens  ut  illi  periculo  se  exponere  possint  conjuges. 

I.  Ita  etiam  Salmanticenses,  o.  c.  cap.  XV,  n.  87  ;  Pruner,  o.  c,  I,  p.  411 ; 
Van  der  Veldbn,  Principia  theologice  tnoralis,  II,  n.  399.  Palmieri,  in  nota  ad 
Ballerini,  dicit  sibi  rationes  Auctoris  esse  captu  difficiles  ;  pariter  Piscetta,  De 
Luxuria  et  de  usu  Matrimonii,  Augusti-Taurinorum,  1908,  n.  loi,  monet  animum 
in  severiorem  sententiam  inclinare. 

3.  Cf.  Collat  Brug.,  t.  XFV,  p.  576  ss.,  ubi  variae  notiones  actus  intern!  propo- 
nuntur. 


THE   USE   OF  MARRIAGE  2x5 

carnalem  in  ipso  corpore,  et  delectationem  ei  adnexam,  de  cujus 
commotionis  provocatione  judicandum  est  sicut  de  actu  venereo 
solitario. 

Paragraph  II.  RIGHTS  AND  DUTIES  OF  CONJUGAL  RELATIONS. 

First  Point.  Existence  of  these  rights  and  duties. 

130. 
The   rights  and    duties   that  married   persons  mutually  and     Married 

exclusively  possess  in  their  conjugal  relations,  have  their  origin  in   thlT^sUto 

the  bond  of  marriage.  demand,  and 

the  duty  to 
This  bond  is  a  moral  bond,  which  unites  the  parties  and  asso-    render  the 

ciates  them  as  a  common  principle  for  the  procreation  and  educa-  ""^^^^^ 
tion  of  children.  But  they  cannot  become  a  common  principle  of 
procreation  otherwise  than  by  sexual  intercourse.  For  this,  it  is 
necessary  that  each  of  the  parties  should  possess  a  right  over  the 
body  of  the  other,  a  real  right  of  proprietorship  for  the  generation 
of  offspring.  This  is  a  strict  right,  resulting  from  a  bilateral  con- 
tract ;  consequently  the  corresponding  obligation  is  an  obligation 
of  justice ;  this  obligation  is  grave,  considering  the  gravity  of  the 
interests  involved. 

This  mutual  right  is  moreover  an  exclusive  right,  incompatible 
with  the  possession  of  a  like  right  by  any  third  person.  It  follows 
from  this  that  any  attempt  at  unlawful  intercourse  constitutes  a 
grave  sin  of  injustice.  This  is  a  consequence  oiiht  unity  of  mar- 
riage, of  which  we  shall  speak  later.  .0, 

It  is  important  to  observe,  that  these  rights  and  duties  extend  Tliese  rights 

only  to  the  essentially  laivftd  use   of  marriage  ;   that  is  to  say,  extend  to  all 

to   all  that  tends  to  procreation,   and  to  evervthmg  that  is,  of  ^"^Z**^  .'**^ "/ 
'^  ./  o  '  marriage, 

its  nature,  fitted  to  that  end.  All  devices  directed  against  genera-   and  to  that 
tion  are  excluded. 

Consequently  the  marriage  bond  affords  no  ground  for  any 
right,  or  for  any  obligation  in  the  matter  of  sodomitical,  onanis- 
tic,  or  voluntarily  infecund  relations  of  any  kind  whatever. 
Nevertheless,  on  the  other  hand,  the  rights  and  duties  in  this  mat- 
ter are  not  restricted  solely  to  cases  where  actual  fecundation  is 
possible,  but  they  extend  to  all  relations  that,  of  their  nature, 
objectively  speaking,  are  fitted  for  generation,  though  the  force 
of  circumstances  may,  perchance,  render  this  intrinsic  aptitude 
ineffective. 


2l6  THE   USE  OF  MARRIAGE 

Taking  into  account  the  power  of  passion,  the  position  of  mar- 
ried people,  bound  to  live  together  for  the  education  of  their 
children,  would  be  unbearable,  if  they  were  under  the  obligation 
of  restricting  their  relations  solely  to  those  occasions  on  which 
actual  fecundation  was  possible.  They  must  necessarily  have 
recourse  to  constant  relations  —  we  mean,  of  course,  lawful  rela- 
tions —  as  a  necessary  sedative  ;  and  for  that,  we  repeat,  they 
must  have  a  real  right  and  a  real  obligation  with  respect  to  one 
another. 

Corollary.  «  The  party  who  by  unlawful  means  incapacitates  himself 
from  rendering  the  marriage  debt,  sins  grievously  against  justice  ;  for,  the 
same  law  of  justice  that  binds  him  to  these  relations,  forbids  him  to  make 
himself  impotent  by  any  unlawful  act.  If,  then,  the  husband  indulges  in 
frequent  acts  of  pollution,  or  maintains  an  unlawful  intercourse  with  other 
women,  in  such  a  way  that  he  is  no  longer  capable  (or  notably  less  cap- 
able) of  intercourse  with  his  own  wife,  besides  the  sin  of  adultery  or  of 
(adulterous)  pollution,  he  is  guilty  of  (another)  special  sin  against  justice, 
which  he  is  bound  to  mention  in  confession. 

He  may,  too,  sin  grievously  by  giving  himself  up  to  practises  that  are 
good  in  themselves,  but  excessive  and  indiscreet,  such  as  excessive  acts  of 
mortification,  prolonged  watchings,  or  overwhelming  toil,  if  he  thereby 
renders  himself  notably  less  fit  for  the  marriage  debt  »  ('). 

In  like  manner  the  husband  who,  in  any  way  whatever,  deprives  him- 
self of  generative  power,  should  recognise  that  he  is  guilty  of  a  grave  sin  of 
injustice  against  his  wife,  except  in  the  case  where  an  operation  of  this 
kind  is  considered  necessary  for  the  preservation  of  his  life.  The  same 
judgment  (with  the  same  exception)  must  be  passed  upon  the  wife  who 
has  recourse  to  the  excision  of  the  ovaries  or  of  the  uterus,  or  to  oophorec- 
tomy,in  order  to  escape  the  dangers  and  inconveniences  of  pregnancy .  Such 
cases  occur.  See  below,  n°  143 . 

Note.  As  soon  as  one  01  the  parties  is  in  the  requisite  condition 
to  make  use  of  the  right,  and  demands  it,  the  other  party  is  bound 
in  justice  to  render  the  marriage  debt.  Apart  from  the  case  in 
which  one  of  the  parties  demands  this  as  a  strict  right,  the  law 
of  charity  may  require  that  it  should  be  tendered.  See  below, 
n°  141. 

There  is  scarcely  ever  any  question  of  an  obligation  of  justice 
to  ask  or  demand  the  marriage  debt ;  but  on  the  other  hand,  the 


I.  Theol.  Mechl.,  o.  c,  n°  43,  question  I. 


THE   USE  OF  MARRIAGE  217 

obligation  of  charity  is  of  frequent  occurrence.  This  is  the  case 
where  it  is  a  question  of  removing  the  danger  of  incontinence  of 
one  of  the  parties,  especially  when  a  certain  natural  reserve,  well 
known  to  the  other,  prevents  the  manifestation  of  the  desire  ; 
or  again  when  mutual  love  is  beginning  to  languish  and  there  is 
need  to  revive  it ;  or,  lastly,  for  the  common  good,  when  the  birth 
of  a  child  is  of  public  importance. 

Second  Point.   Principles  regulating  the  exercise  of  the 

CONJUGAL   right. 

132. 
The  right  to  lawful  relations  is  of  the  very  essence  of  the  matri-   Distinction 

monial  contract  and  of  the  conjugal  bond  formed  by  marriage.  yiJ]^t%o  rela- 

As  long   as  the   marriage  lasts,    this  inviolable  and  inalienable  ^^"«s  and  the 
•    1      1     1  1  1  1  Till  lawful  exer- 

right  belongs  to  the  married  couple,  and  they  have  no  power  to    ciseofthat 

renounce  it,  e.  g.,  in  favour  of  some  third  person  (').  rigkt. 

It  may  happen,  however  :  1°  that  the  actual  exercise  of  this  right 

(the  right  itself  remaining  unimpaired)  may  be  forbidden  to  either 

o  ne  or  the  other  of  the  parties,or  even  to  both  at  once,for  a  certain 

space  of  time,  or  for  ever.  In  other  words,it  may  come  to  pass  that 

the  parties,  while  retaining  full  possession  of  their  reciprocal  title  to 

the  o-wnership  of  one  another's  body,  may  find  themselves  deprived 

of,  or  suspended  from,  the  enjoyment  of  that  title  (*).  It  may  happen 

2°  that  the  actual  exercise  of  the  conjugal  right  may  be  unlawful  on 

account  of  some  particular  circumstance  affecting  the  sexual  act 

itself,  or  the  party   who   demands  it  ;    3°    where    one    of  the 

parties  has  a  full  right  and  may  lawfully  use  it,  it  is  quite  possible 

that   the  other  party  may  have  good  and  sufficient  reason  for 

refusing.  These  three  distinct  points  justify  the  three  following 

principles. 

^         ^  133. 

First   principle.  The  actual  enjoyment  of  the  right  to  conjugal   Theenjoy- 

relaiions  may  be  lost  or  suspended  in  different  ways,  as  concerns  one  or   ^o„.ju<ral 

both  of  the  parties.  right  may  be 

lost  or  sus- 
pended  : 

1.  Thus  a  bachelor  who  maintains  unlawful  intercourse  with  another  man's 

wife,  with  the  husband's  consent,  is  guilty  of  adultery  and  so  of  grave  injustice  to 
the  husband. 

2.  The  party  who  has  forfeited  the  enjoyment  of  his  title,  no  longer  has  any 
actual  right  to  conjugal  relations.  Nevertheless,  it  would  be  an  injustice  to  him, 
if  some  third  party  took  his  place. 


2l8  THE  USE   OF  MARRIAGE 

A.  In  the  first  place ^  by  the  spontaneous  renunciation  of  the 
parties : 

/o  in  Mnsc-       1 .  Mutual  renunciation  may  be  explicit  or  implicit,  as  is  almost 

-renHnciation  always  the  case  when  husband  and  wife,  by  mutual  consent,  take 

of  the  par-    a  VOW  of  chastity  (*).  Mutual  renunciation  evidently  deprives  both 

parties  of  the  power  of  wstwg"  the  strict  right  to  conjugal  relations, 

and  at  the  same  time  releases  them  from  the  obligation  in  justice 

to  render  the  marriage  debt. 

2.  In  unilateral  renunciation,  the  party  making  it  renounces  the 
exercise  of  his  right  with  respect  to  the  other.  Consequently  he 
can  no  longer  exact  conjugal  relations,  and  the  other  party  is  no 
longer  bound  to  satisfy  him  (*).  But  the  party,  who  has  not 
renounced,  keeps  intact  the  personal  right,  and  so  may  exact 
from  the  other  the  rendering  of  the  marriage  debt. 

B.  In  the  second  place,  by  the  violation  of  conjugal  fidelity. 
Soincoftse-       The  unfaithful  party  no  longer  has  a  right  to  the  submission  of 
vIoLtionof  the  other  party  in  the  matter  of  conjugal  relations.  It  is  especially 

'fi^^rf^^-  ^^^  ^^^^  ^^  adultery  that  we  have  in  view  here.  The  guilty 
party  remains  deprived  of  his  rights  until  the  other  party  restores 
them  by  condoning  the  fault,  or  until  the  injured  party  has  in  turn 
become  guilty  of  a  like  transgression. 

C.  In  the  third  place,  by  the  loss  of  reason. 

3°  by  the  loss     The  conjugal  right  must  be  exercised  in  a  human  fashion.  Hence 

0/ reason  ,    j^.  ^^^  ^^^  ^^  made  use  of  by  one  who  is  deprived  of  reason,  and 

so  incapable  of  a  human  act.  This  holds  good  whether  the  loss  of 

reason  is  peiTnanent,  or  only  for  the  time  being,  as  for  instance, 

when  a  man  is  dead-drunk. 

D.  In  the  fourth  place,  by  ecclesiastical  regulations. 

4obyeccle-        1.  For  the  case  in  which  the  Church  permits  separation  ^tto«i 
rel*ul(Uhns.   iorum  et  mensam,  see  below,  art.  3,  n"  153. 


1.  It  is  true,  one  can  imagine  a  case  in  which  husband  and  wife,  by  common 
consent,  take  a  vow  of  chastity,  while  reserving  the  right  to  exact  conjugal 
intercourse.  This  will  be  more  fully  elucidated  by  the  explanation  of  the  follow- 
ing principle. 

2.  The  party  who  has  renounced  the  exercise  of  his  right  cannot  exact  cor\]ugs.\ 
relations,  i.  e.,  as  a  matter  of  right,  binding  the  other  party  injustice;  but 
he  is  free  to  manifest  a  desire,  and  to  make  a  request,  unless  for  some  reason  of 
another  kind  even  such  a  request  is  forbidden  him. 


THE  USE  OF  MARRIAGE  219 

2.  During  the  first  two  months  of  ike  marriage:  in  the  case  in  which 
one  of  the  newly  married  parties  thinks  of  entering  reHgion  ('), 
the  Church  deprives  the  other  party,  during  the  first  two  months, 
of  the  right  of  exacting  conjugal  relations,  and  releases  the  former 
from  the  obligation  to  the  marriage  debt. 

This  ecclesiastical  rule  is  contained  in  the  provisions  of  cap. 
2  et  7,  X,  III,  32,  according  to  which  it  is  at  the  option  of 
the  one  party,  even  against  the  will  of  the  other,  to  leave 
the  married  state  and  enter  religion,  on  condition  that  the  mar- 
riage has  not  been  consummated.  The  Church  allows  two  months 
for  coming  to  a  decision,  and  if  the  one  party  seriously  thinks  of 
taking  this  step,  it  gives  him  the  right  of  denying  himself  to  the 
other.  The  two  months  are  reckoned  from  the  day  of  the  marriage, 
or,  in  case  of  dispute,  from  the  day  fixed  by  the  ecclesiastical 
judge.  The  judge  has  power  to  prolong  the  delay  (-). 

Once  the  marriage  is  consummated,  the  right  ot  entering  religion 
is  at  an  end,  and  consequently  also  the  right  of  denying  oneself  to 
the  other  party,  unless  the  consummation  of  the  marriage  has 
been  brought  about  by  deceit  or  violence.  Under  such  circum- 
stances the  victim  does  not  lose  the  right,  but  religious  profession 
does  not  dissolve  the  marriage,  since  this  is  now  ratum  et  con- 
summatum  (*). 

Second  principle.  The  actual  exercise  of  the  conjugal  right  nuty  Tlie  exercise 
also  become  unlawful  by  reason  of  some  particular  circumstance  affecting  %iri^t^inay 
either  the  conjugal  relations  themselves,  or  the  person  of  the  parly  solicit-   become  un- 

'^  ^  lawful: 

tng  them. 

Explanation. 

A.  Circumstances  affecting  the  conjugal  relations. 
It  is  a  question  here  of  circumstances  that  vitiate  the  sexual  act,  1°  By  reason 
neither  in  its  essence  nor  in  its  fecundating  qualities,  but  which,    cumstance 

nevertheless,  render  it  mortally  or  venially  sinful  in  itself,  unless  aff^cHng^he 

.  .  •'  ■'  relations 
some  sufficient  reason  justifies  it.  The  circumstances  of  which  we    themselves, 
such  as  : 

1.  It  means  entering  a  religious  order  strictly  so  called,  with  solemn  vows. 
The  privilege  in  question  has  been  granted  in  favour  of  the  religious  slate,  and 
can  profit  those  only  who  seriously  think  of  embracing  it. 

2.  Cf.  Causa  Placcntina,  of  3  Feb.  1725,  in  Benedict  XIV,  Quaestioncs  Canotti- 
cae,  qu.  420  ;  and  compare  with  Kutschker,  o.  c,  I,  p.  288  ss. 

3.  Fahrner,  o.  c,  p.  303  s. 


220  THE  USE  OF  MARRIAGE 

speak  are  an  extraneous  addition  to  the  relations,  and  lend  them 
an  adventitious  and  accidental  malice,  that,  in  most  instances, 
a  reason  of  utility  or  of  proportionate  necessity  is  capable  of 
removing. 

Exempla. 

circumstantia      1,  Circumstantia  loci,  puta  sacri,  in  quo  conjugibus  non  licet 
'        copulari  nisi  adsit  admodum  urgens  ratio,  v.  gr.  incontinentiam 
vitandi  per  diuturnam    in  tali  loco  commorationem,  uti  potest 
contingere  tempore  belli,  persecutionis. 
modi,  2.  Circumstantia  modi,  quatenus  fiat   coitus  extra  situm  natu- 

ralem,  puta  inter  virum  succubum  et  mulierem  incubam,  vel  a 
latere  aut  a  retro  more  pecudum,  potius  quam  facie  ad  faciem, 
muliere  succuba  (*).  Inde  inducitur  inordinatio  venialis,  quae 
facile  abstergitur  si  rationabilis  adest  causa  dicto  modo  coeundi, 
v.  gr.  ad  periculum  abortus  vitandum  in  uxore  prsegnante  propter 
obesitatem  viri,  velfrigiditatem  vincendam  alterutrius;  supponitur 
autem  servari  essentialem  copulas  ad  generationem  ordinatio- 
nem  (^). 

scandali,  3.  Scandalum,  ex  eo  quod  copula  peragatur  coram  adstanti- 
bus  :  quod  scandalum  adeo  grave  videtur  ut  vix  ulla  causa  ab  ea 
excusare  valeat  ('). 


I.  Ille  est  situs  pro  norma  servandus,  quern  natura  indicat  in  ipsa  membrorum 
genitalium  dispositione,  quique  magis  favet  debitse  seminis  virilis  susceptioni, 
cum  ita  intimius  penetrentur  corpora  ac  altius  deponatur  semen  ;  coitus  tamen 
alio  sub  situ  institutus,  modo  fiat  in  vase  debito  et  absque  seminis  profusione, 
potest  esse  generationis  fini  idoneus,  perfectioris  penetrationis  defectui  supplente 
motu  vitaii  quoad  corporis  muliebris  penetralia  ingredienda  gaudent  spermato- 
zoida  ;  et  ideo  in  hujusmodi  situ  inordinatio  est  secundum  quid  dumtaxat  et  venia- 
lis. Cf.  Stohr,  o.  c,  p.  503  s. 

3.  Profecto  essentialis  foret  defectus,  copulam  substaniialiter  corruinpens,  si 
debitum  vas  non  fuit  servatum,  sodomitico  congressu,  vel  semen  fuerit  penitus 
profusum.  Ideo  attendendum  est  confessario  audienti  poenitentem  confitentem  se 
copulam  instituisse  retrorsum  :  caute  scilicet  et  prudenter  inquirat  utrum  salva 
fuerit  essentialis  aptitudo  ad  finem  generationis,  servato  vase  naturali  nee  pro- 
fuso  semine  :  de  qua  aptitudine  si  constat,  abstineat  sacerdos  ab  ulteriori  inquisi- 
tione  circa  determinatum  coeundi  modum.  Cf.  infra  monenda  de  munere  con- 
fessarii. 

3.  Id  potissimum  valet  respectu  puerorum  ac  puellarum  pubescentium  :  caete- 
rum  urgenda  est  apud  parentes  providissima  vigilantia  ne,  praesentibus  liberis 
etiam  junioribus,  aliquid  agant  quo  infantilis  phantasia  fcedari  queat. 


THE  USE  OF  MARRIAGE  221 

4.  Nocumentum  ex  usu  matrimonii  timendum,  praesertim  pro  nocumenti ; 
uxore  vel  pro  concepta  prole  ;  quod  nocumentum,  ad  hoc  ut  exinde 
illicita   reddatur  copula,    admodum  grave   requiritur :  eo  autem 
posito,  ratio  urgentior  potest  usum  matrimonii  legitimare. 

Ex  hoc  capite,  per  se  et  seclusa  positiva  prohibitione,  non  est 
illicitum  copulam  exercere  : 

a/  tempore  pragnantia,  nisi  per  accidens  et  omnino  exceptio- 
naliter  experientia  constet  extraordinarium  ac  imminens  adesse 
periculum  abortus  ('),  vel  gravioris  nocumenti  pro  prole  concepta, 
uti  contingere  posset  in  ultimis  prsegnationis  temporibus. 

b)  tempore  puerperii,  seu  per  primas  inde  a  partu  hebdomadas  : 
datur  quidem  periculum  pro  muliere  puerpera,  tum  ex  virium 
debilitate  (*),  tum  ex  abnormi  dilatatione  uteri,  paulatim  ad  pris- 
tinam  molem  redeuntis  ('),  et  ideo  favendum  est  usui  differendi 
reassumptionem  conjugalis  consortii  (*),  sed  regulariter  non  vide- 

I.  Cf.  Stohr,  o.  c,  p.  504  s.  :  periculum  abortus  ex  copula  potissinium  datur 
tempore  incipientis  praegnantias,  quod  periculum  non  est  attendendum  cum  de 
incaepta  prasgnantia  non  constet ;  postquam  autem  certa  evaserit  impfcegnatio, 
periculum  jam  minus  est  et  practice  nullum  vel  leve,  in  communibus  adjunctis, 
modo  moderate  exerceatur  coitus  tarn  in  modo  quam  in  frequenlia. 

3.  «  Mulier,  gravissima  vitae  actione  vix  peracta,  physiologicos  quidem  sed 
vehementissimos  dolores  in  ipsis  membris  genitalibus  pertulit,  et  vel  robusta 
puerpera  fatigatam  ac  debilitatam  se  sentit  ».  Capellmann,  o.  c,  p.  150.  Cf. 
etiam  Gemelli,  o.  c,  p.  67  s. 

3.  «  Puerpcrium  multas  res  secum  fert,  quae  quolibet  alio  tempore  morbosae 
dicendae  essent,  quamquam  hie  physiologicae  sunt.  Reductio  et  restitutio  uteri 
adeo  dilatati  fortiorem  organismi  actionem  postulat,  imo  ex  recentiorum  obser- 
vationibus  fere  Integra  resorptio  et  reconstructio  uteri  locum  habet.  Res  quae 
hoc  tempore  in  organis  generationis  aguntur,  immutationes  ac  violationesgravi- 
ditate  productae,  jam  disponunt  per  se  ad  varios  morbos  ;  ad  sanguinis  profluvia, 
inflammationes,  positiones  uteri  aberrantes  ;  quare  in  directa  locali  irritatione 
qualem  copula  secum  fert,  atque  etiam  in  universa  commotione  per  copulam 
excitata,  aliquid  periculosum  et  damnosum  esse  nemo  non  fatetur.  Hoc  autem 
damnum,  utpatet,  eo  perniciosius  erit  quo  partui  propius  ».  Capellmann,  o.  c, 
p.  140. 

4.  Solent  conjuges  in  nostris  regionibus  ad  usum  matrimonii  redire  inde  a  die 
introductionis  in  Ecclesiam  et  benedictionis  post  partum.  Et  ideo  bonum  est  ut 
parochi  parturientes  ad  illam  benedictionem  ocius  non  admittant.  Antiquitus  in 
ecclesia  recipiebantur,  conformiter  ad  legem  mosaicam,  post  40  dies  inde  a  nati- 
vitate  prolis  masculinae  et  post  80  dies  inde  a  nativitate  puellae  ;  deinceps  autem 
servatum  est  uniformiter  spatium  40  dierum.  Cf.  Franz,  o.  c,  p.  215  ss.,  ubi 
etiam  curiosas  praxes  describit,  per  medium  aevum  usurpatas,  in  caercmonia  bene- 
dictionis post  partum. 


222  THE  USE  OF  MARRIAGE 

tur  satis  urgens  periculum  ut  ideo,  saltern  sub  gravi,  prohibeatur 
concubitus. 

c/  tempore  fluxus  menstrui  ('),  quia  rursus,  si  periculum  datur 
nocendi  mulieri,  levius  reputatur  (*),  et  ex  alia  parte  est  circum- 
stantia  favens  potius  foecundationi. 

Dicitur  :  <i  de  sc  et  seclusa  positiva  prohibitionc  * ,  quia  olim  variae 
prohibitiones  hinc  inde  erant  latae  vel  consuetudine  introductse  ('). 

nonauUmex     Nota.   1.  Circumstantia  temporis  sacri,  pcenitentiae   sive  devo- 
'^*^'temloris"^  tionis  exercitiis  peculiariter  addicti,  sub  hodierna  disciplina,  non 
sacri.  ■ 

1.  Fluxus  menstruus  saspe  confunditur  cum  decisione  ovuli  maturi  ab  ovariis 
transeuntis  per  uterum  et  vaginam  :  sunt  tamen  duo  phenomena  distincta,  licet 
plerumque  simul  coincidant.  «  La  maturation  et  I'expulsion  de  I'ovule,  docet 
FoREL,  o,  c,  p.  54,  sont  en  g6n6ral  accompagnees  chez  la  femme  d'un  pWno- 
m^ne  nerveux,  proche  parent  de  I'^rection  chez  I'homme.  La  muqueuse  de  la 
cavite  de  la  matrice  est  tres  riche  en  vaisseaux  qui  ont  la  faculte  de  se  dilater 
fortement  et  de  se  gorger  de  sang  sous  I'influence  inhibitrice  de  certains  centres 
nerveux.  Comme  la  muqueuse  est  trds  fine...  le  sang  transsude  au  travers  de  la 
muqueuse  et  s'ecoule  sous  forme  de  ce  qu'on  appelle  les  regies  ou  menstrues. 
Leur  but  est  sans  doute  de  preparer  convenablement  la  muqueuse  de  la  matrice 
k  la  fixation  de  I'ceuf  f^conde  qui  viendra  se  greffer  k  sa  surface... 

Les  deux  phenomenes  peuvent  avoir  lieu  independamment  I'un  de  I'autre,  car 
les  menstrues  en  elles-memes  dependent  uniquement  d'une  irritation  nerveuse, 
qui  peut  etre,  par  exemple,  provoquee  ou  arretee  par  la  suggestion  hypnotiquew. 

2.  Incommodum  oriri  potest  ex  levi  irritatione  per  copulam  tunc  exercitam  for- 
san  provocanda,  necnon  ex  verecundia  cui  mulier  menstruata  peculiariter  est 
obnoxia,  unde  fit  ut  passim  consortium  fugiat. 

3.  Similes  prohibitiones  refert  Martene,  o.  c,  L.  I.  P.  2*,  c.  IX,  art.  IV,  sub 
n.  viii-ix.  Ita  citat  statutum  Heraldi  Turonensis  :  ♦'Fideles  se  abstineant  a  coitu 
praegnantium  uxorum  et  menstruo  tempore  »  ;  in  rescripto  S.  Gregorii  ad  con- 
sulta  S.  Augustini  Anglorum  apostoli  legitur  ;  «  Ad  ejus  (uxoris)  vero  concubitum 
vir  accedere  non  debet,  quoadusque  qui  gignitur  ablactetur  ».  Alibi  statuitur  : 
€  Conjugales  continere  se  debent...  in  illis  diebus  quibus  uxor  prasgnans,  hoc  est 
a  die  qua  filius  in  utero  ejus  motum  fecerit,  usque  ad  partus  sui  diem  ;  item  a 
partu  per  36  dies,  si  masculus,  si  vero  filia  per  46  dies  >.  Vulgata  etiam  erat 
opinio  quod  ex  copula  cum  tali  muliere  monstrum  gigncretur,  leprosus  scil. 
foetus  vel  elephanticus  quatenus  sanguis  menstruatse  esset  infectus  ;  cf.  S.  Hie- 
RONYMUM,  In  Ezech.,  XVII,  6  {Migne,  XXV,  col  173).  Existebant  etiam  in  medio 
aevo  praescriptiones  hinc  inde  vigentes,  quibus  menstruatae  ab  ingressu  ecclesiae 
prohiberentur.  Cf.  Franz,  o.  c,  p.  214  s.  ;  Moy,  o.  c,  p.  383  ss. 

Severa  in  hac  re  erat  Ltx  Mosaica,  Lev.,  XVIII,  ig,  vetans  omnem  congressum 
cum  menstrua  patiente,  et  quidem,  juxta  c.  XX,  18,  sub  poena  mortis.  Et  ita 
Ezech.,  XVIU,  6,  quasi  in  justitiae  signum  tradit  quod  c  uxorem  proximi  sui  non 
violaverit  et  ad  mulierem  menstruatam  non  accesserit  ». 


THE  USE  OF  MARRIAGE  223 

est  ratio  copulam  conjugalem  prohibendi ;  ad  summum  posset  dis- 

suaderi  ratione     instantis    S.     Communionis,    ratione    temporis 

quadragesimalis,    vel    ratione  solemnioris    fesivitatis    ('),   idque 

prudenter  et  moderate,  ac   ea  dumtaxat  lege  ut  non  modo  salva 

sint  jura  compartis  ac    seclusum  incontinentiae  periculum,   sed 

etiam   ut  inde   non  gravetur  altera  pars,   nee  mutuo  conjugum 

amori  noceatur. 

2.  Circumstantia  quae  et  in   quantum  reddit  usum  matrimonii 

objective  illicitum,  eo  ipso  auferet  jus  expeditum  et  obligationem 

ad  ilium,  siquidem    non  datur  jus  et  obligatio  ad  rem  objective 

inhonestam  (*). 

13S. 

B.    Circumstances   affecting   the    party   soLicrriNG   the  2°  By  reason 

„„^  . ^^,„  of  some 

RELATIONS.  circimstattce 

These  circumstances  are  verified  where  the  party  in  question  tjj^f^artv%li- 
has  taken  tht  vow  of  chastity,  and  also  where  he  uses  marriage     citing  the 
with  a  bad  intention,  e.  g.  by    substituting  in   his  mind  another  '  '^" 

person  for  his  legitimate  wife  (intentional  adultery)  ;  or  finally 
where  the  Church  forbids  him,  by  way  of  punishment,  to  solicit 
the  relations,  as  it  occurs  in  the  case  of  unlawful  affinity  contract- 
ed by  his  fault  during  the  marriage. 

If  then  it  is  a  question  of  such  a  circumstance,  the  party  con- 


1.  Cf.  Martene  1.  c,  n.  i-ix.  Commendabatur  vel  praecipiebatur  conjugalis 
abstinentia  diebus  et  noctibus  Dominicis  a.c  festivis,  idque  potissimum  in  reveren- 
tiam  S.  Communionis  suscipiendas,  cum  in  textibus  ibidem  relatis  addatur  :  «  ut 
securius  communicent  »,  «ut  sincera  et  secura  conscientia  ad  altare Domini  casto 
corpore  et  mundo  corde  praesumant  accedere  ».  Nonnunquam  mentio  fit  pcenas 
consequentis  ex  inobservatione,  quatenus  si  «  in  ea  (die  Dominica)  conjuges 
simul  convencrint,  exinde  aut  contracti,  aut  epileptici,  aut  leprosi  nascuntur  ». 

In  majoribus  festivitatibus  Paschatis  et  Pentecostes,  per  integram  octavam 
continentia  erat  servanda,  ac  in  Natalibus  Domini  per  20  dies  et  noctes.  Ulterius 
ab  usu  matrimonii  abstinendum  per  Quadragesimam  et  per  Adventum  (in  qui- 
busdam  locis  :  a  festo  S.  Martini),  ad  instituendam  praeparationem  ad  Pascha 
et  Natalia  Domini  in  oratione  et  poenitcntia,  a  quibus  removebat  voluptas  car- 
nalis. 

Etiam  diu  mansit  in  usu  ut,  prima  nuptiarum  nocte,  vel  etiam  biduo  aut 
triduo  post  nuptias,  ab  usu  matrimonii  abstincrent  neo-conjuges,  ad  exemplum 
Tobias  junioris,  et  in  reverentiam  benedictionis  nuptialis  acceptae.  Cf.  Moy,  1.  c. 

2.  Supponitur  copula  non  intrensice  vitiata,  sed  de  se  apta  generationi,  juxta 
notata  sub  n.  I34:secus  namque  ad  earn  nc  radicale  quidem  haberetur  jus,  uti 
vidimus  sub  n.  130. 


224  THE  USE   OF  MARRIAGE 

cerned  sins  by  soliciting  the  rendering  of  the  marriage  debt  ; 
however  he  does  not  act  against  his  matrimonial  right,  the  sexual 
act  itself  being  in  order.  He  keeps,  strictly  speaking,  the  actual 
right  to  exact  the  relations,  by  the  fact  of  the  conjugal  bond 
(unless  he  would  be  deprived  of  it  for  other  reasons)  ;  his  fault 
relates  only  to  the  personal  circumstance  which  should  withhold 
him.  Consequently  the  other  party  is  bound  in  justice  to  satisfy 
him,  and  his  material  co-operation  to  the  sinful  act  of  the  con- 
sort, must  yield  to  the  duty  of  justice.  If  the  party  not  involved 
in  the  aforesaid  circumstances  exacts  the  relations,  it  is  evident 
that  he  is  in  his  full  right,  and  that  the  other  has  to  submit  him- 
self to  it. 

Applicationes. 

1 .  Votum  castitatis. 
136. 

a)  exyoto  cas-     a/  Votum  castitatis  ante  matrimonium  emissum,   et  non  dispen- 

anlematri-   satum  (*),  ubi  non  dirimit  matrimonium  (*),  illud   regulariter  pro- 

monium      hibet  contrahendum  ('),  ac  contracto  matrimonio,  vovefiiem  privat 
emisso,         .         . 

Ucetttui,  non  jure  stricto,  petendi  debitum. 

Dicitur:  *  privat  licentia petendi,  non  jure  >.  Nimirum  : 

ratione  cnjus      I.    pars  vovens  votum  castitatis  servare  tenetur  in  quantum, 

lur^^on7ure  ^alvo  jure  compartis,  servari  potest :  non  potest  ergo  licite  petere, 

sed  licmtia    cum  a  petendo  possit,  illaeso  jure  alterius  partis,  abstinere. 
petendi  de-  .  , .  .,.,,.  , 

bitum,  2.  conservat  jus  petendi  seu  exigendi  debitum,  quia  copula  non 

est  objective  ac  in  se  inhonesta,  nee  votum  illud  importat  neces- 

sario  renuntiationem  juri  in  matrimonio  accipiendo. 

3.  potest  reddere,  idque  debet,  comparti  jure  exigenii,  ad  hoc  ut 

hujus  jus  sit  salvum  ;  quodsi  compars  non  habet  jus  exigendi  (*), 


1.  De  dispensatione  super  voto  castitatis  in  ordine  ad  matrimonium  contra- 
hendum, infra  agetur  ubi  de  dispensationibus. 

2.  Matrimonium  irritat  votum  solemne  emissum  in  Religione  stricte  dicta  ; 
item  votum  simplex  a  scholasticis  S.  J.  emissum  post  biennium  novitiatus.  Cf. 
infra  ubi  de  impedimento  dirimente  Voti. 

3.  Dicitur  regulariter  l  et  ita  excipitur  CASUS  quo  quis,  gravi  de  causa,  v.  gr. 
ad  legitimandam  prolem,  contraheret,  consentiente  comparte,  cum  intentione 
ingrediendi  Religionem  ante  matrimonii  consummationem.Cf.dicenda  sub  n.247. 

4.  Ita  in  primo  bimestri,  parte  voto  obnoxia  de  ingredienda  Religione  delibe- 
rante  ;  vel  si  ipsa  compars  esset  adulterata  ;  vel  si  compars  renuntiaverit  juri 
suo,  quae  tamen  renuntiatio  per  se  non  necessario  continetur  in  consensu  quem 
praestltit  in  votum  a  parte  vovente  emittendum. 


THE    USB   OF   MARRIAGE  2^5 

pars  vovens  non  debet,  adeoque  non  potest,  reddere,  nisi,  in  casu 
particulari,  ratione  instantissimi  periculi,  quod  dispensatione  prae- 
veniri  nequeat,  voti  observatio  evaserit  moraliter  impossibilis  (*). 

Quod  specta.t  compariem  voto  non  ligatam,  potest  ac  debet,  attento 
jure  stricto  debitum  exigendi  penes  partem  voventem  remanente, 
reddere  debitum,  cum  obligatio  justitiae  praevaleat  cooperationi 
materiali  ad  malam  actionem  voventis  ;  potest  etiam  dehitnva  peter e, 
cum  utatur  jure  suo,  nee  provocet  compartem  ad  peccatum,  siqui- 
dem  haec  reddere  licite  potest  conjugi  jure  petenti.  Ad  hoc  autem 
ut  pars  libera  reddere  possit  ac  debeat,  supponitur  partem  voto 
obstrictam  aliunde  non  amisisse  jus  debitum  petendi  :  alias  non 
deberet  pars  libera  debitum  reddere  nee  etiam  stricte  posset, 
ratione  cooperationis  ad  peccatum  compartis,  nisi  proportionata 
de  causa  (*). 

b/  Quod  attinet  votuni  matrimonio  succedens,  non  irritatum  ('),  velpostma- 
nee  dispensatum,  nee  matrimonium  dissolvens  (*)  :  si  fuit  emissum 
votum  castitatis  ^^r/^c^^  ("),  omnis  parti  voventi  interdicitur  usus 
matrimonii,  non  tantum  ad  petendum  debitum,  sed  etiam  ad 
reddendum  (supponitur  enim  compars  non  habere  jus  exigendi 
redditionem,  cum  votum  castitatis  perfectae  non  possit  a  conjuge 
emitti,  nisi  compars  juri  suo  cesserit  vel  eo  fuerit  privatus)  ;  potest 
tamen  pars  vovens  conservasse  expeditum  jus,  attentis  scil.  modo 


trimonium 
emisso, 


1.  Cf.  DiGNANT,  De  Virtute  Religionis,  Brugis,  1896,  n.  183  ;  Lehmk.,  o.  c,  I, 
n.  457,  coll.  tamen  11,  n.  846  ;  S.  Alph.,  n.  325,  1.  Ill,  collato  etiam  1.  VI,  n.  930. 

2.  Talis  causa  facile  obtinet  in  uxore,  cui  saepe  grave  erit  semper  petere  debi- 
tum. 

3.  Probabilius  non  potest  maritus  irritare  votum  castitatis  uxoris,  neque  directe, 
cum  mulier  in  re  castitatis  non  censeatur  subjecta  viro,  ac  servet  suam  nati- 
vam  independentiam  ;  neque  indirecte,  quia  non  nocet  regimini  domestico,  cum 
votum  supponatur  emissum  salvo  jure  compartis. 

4.  Matrimonium  contractum,  ratum  non  consummatum,  dissolvitur  per  solum 
votum  solemne  in  Religione  stricte  dicta. 

5.  Potest  conjux  valide  et  licite  vovere  castitatem  perfectam  1/  ubi  et  in  quan- 
tum locus  est  privilegio  primi  bimestris,  de  quo  n.  133,  sub  40;  2/  id  potest  valide, 
consentiente  comparte,  et  etiam  licite,  salvis  cautelis  sub  n.  158  describendis  ; 
3/  id  potest  valide  et  licite,  quando  compars  est  a  jure  suo  in  perpetuum  decisa, 
puta  si  adulterium  admiserit,vel  lapsa  est  in  haeresim  aut  apostasiam  et  separatio 
est  judicialiter  concessa  in  perpetuum.  Extra  casus  enumerates,  non  potest  con- 
jux valide  vovere  castitatem  perfectam,  nequidem  in  Religione  (Vermeersch, 
De  Religiosis  Institutis  et  Personis,  2^  ed.,  Brugis,  1907, 1,  n.  145). 

15 


226  THE  USE  OF  MARRIAGE 

dictis  necnon  praeoccupatis  supra,  sub  n.  133,  A.  Si  fuit  emissum 
votum  castitatis  imperfcctcB  {^),ser\a.nds£  scil.  illaesojure  compartis, 
valent  dicta  sub  a/. 

Corollarium.  Quod  valet  de  debito  stricte  dicto  seu  de  copula, 
valet  de  omnibus  actibus  venereis  non  consuinmatis,  ad  copulam 
ordinatis  :  pars  vovens  non  potest  illos  licite  petere  sed  jure  petit, 
ac  eos  reddere  potest  et  debet  comparti  jure  exigenti  ;  compars 
autem  libera  potest  ac  debet  dictos  actus  reddere  parti  voventi, 
jure  petendi  aliunde  non  privatse. 

salva  dispen-  Nota.  a/  Amissa  licentia  petendi  debitum  potest  ab  auctoritate 
ecclesiastica  restitui  (*).  Id  valet  Episcopus  ex  potestate  ordinaria, 
quotiescumque  votum  non  est  certum  vel  non  perfectum  (^),  vel 
etiam,  ubi  certum  est  ac  perfectum  votum,  quando  periculum  est 
in  mora,  et  agitur  de  voto  jure  et  facto  occulto,  privatim  scil. 
emisso  et  ignoto  (*). 

Ulterius  ex  potestate  delegata  sclent  accipere  Ordinarii  (et  in  specie 
Ordinarius  Brugensis),  in  Pagella  S.  Poenitentiariae,  facultatem  pro  fore 
conscientiae,  <  dispensandi  ad  petendum  debitum  conjugate  cum  transgres- 
sore  (perfecti)  voti  castitatis  privatim  emissi  (non  in  congregatione  religio- 
sa)  (5),qui  matrimonium  cum  dicto  voto  contraxerit,hujusmodi  pcenitentem 
monendo    ipsum  ad  idem  votum  servandum  teneri,  tam  extra  licitum 


1.  Valet 'Jiutcm  emissum  votum  castitatis  imperfecta,  in  quantum  scil.  non  nocet 
juri  a  comparte  acquisito,  nempe  quoad  non  petendum  debitum :  ad  hoc  enim 
non  extenditur  jus  alterius  partis.  Contraria  videntur  cc.ii  et  16,  Causa  XXXIII, 
qu.  V  ;  sed  hasc  capita  possunt  intelligi  de  voto  continentiae  absolute  servanda. 
Cf.  EsMEiN,  o.  c,  II,  p.  4  s.,  et  p.  22  ss.  Ubi  valet  illud  votum,  etiam  de  se  licet, 
sed  ipsi  raro  est  opportunus  locus. 

2.  Restitutio  illius  licentiae  (vel,  uti  passim  minus  accurate  dicitur,  juris 
petendi  debitum),  amissae  ex  voto,  vocatur  etiam  dispensatio  voti  secundum  quid, 
unice  scil.  in  ordine  ad  debitum  petendum. 

3.  Ut  votum  sit  perfectum  debet  esse  perfectum  tum  ex  parte  actus,  tum  ex 
parte  materiae,  juxta  latius  ezposita  apud  Collat.  Brug.,  t.  VI,  p.  328  ss.  ;  tale 
plerumque  non  est  votum  in  matrimonio  emissum,  juxta  modo  dicta.  Cf.  etiam 
infra,  n.  357. 

4.  Ex  hac  potestate  ab  Episcopo  delegata  possunt  etiam,  in  dioecesi  Brugensi, 
Decani  dispensare  commutando,  in  ordine  ad  petendum  debitum,  super  voto  non 
reservato  castitatis,  juxta  dicenda  n.  369.  Idem  valent  confessarii,  tempore 
missionis  necnon  quibusdam  temporibus  privilegiatis,  infra  limites  ibidem  des- 
cribendos. 

5.  Si  votum  fuit  emissum  in  congregatione  religiosa,  dispensatio  est  obtinenda 
a  S.  Sede,  et  quidem  a  Congr.  S.  Negotiis  Rcligiosorum  praeposita. 


THE   USE   OF  MARRIAGE  227 

matrimonii  usum  quam  si  marito  vel  uxori  respective  supervixerit  » (*).  Cf. 
infra,  n.  369. 

b/  Ubi  matrimonium  absque  dispensatione  est  initum  ab  habente 
votum  castitatis,  saepe  opportunum  est  ilium  relinquere  in  bona 
fide  circa  prohibitionem  debitum  petendi,  donee  impetrata  fuerit 
dispensatio  seu  restitutio  juris  amissi.  Idem  valet,  proportione 
servata,  de  casu  quo  imprudenter  emissum  est  votum  post  matri- 
monium. 

c/  Quoad  reliqua  vota  vitcB  perfections,  si  ipsis  spretis  matrimonium  est  Quid  de  aliis 
initum  illicite  :  votum  virginitatis  (*)  efficit  ut  pars  vote  ligata  non  possit  *"''**• 
licite  petere  debitum  ante  consummationem,  dum  altera  pars  licite  et  jure 
petit ;  matrimonio  autem  consummato,  jam  ad  nihil  obligat,  cum  ejusdem 
observatio  impossibilis  evaserit.  Votum  Religionis  ingrediendas  est  obser- 
vandum  quousque  jus  habet  vovens  Religionem  amplectendi,  juxta  inferius 
dicenda,  ubi  de  separatione  a  tecto ;  alias  ad  nihil  obligat.  Ratione  voti 
ccelibatus  ad  nihil  tenetur  conjux  ;  nee  etiam  ratione  voti  suscipiendi  or  di- 
nes, nisi  exceptionaliter  contingat  compartem  solemniter  vovere,  uti  eodem 
loco  exponetur. 

Observa  tamen  ubi  dicuntur  tria  ultima  vota  ad  nihil  jam  obligare,  id  in- 


1.  Ex  potestate  subdelegata,  eadem  facultate  gaudent,  pro  actu  sacramentalis 
confessionis,  in  dioecesi  Brugensi,  Decani,  ac  etiam  confessarii  ad  audiendas 
confessiones,  tempore  missionis,  deputati.  Stat,  dicec.  Brugensis,  P.  I,  tit.  II,  art. 
6 ;  cf.  infra,  n.  369. 

Formula  sequens  adhiberi  potest ;  post  exceptam  scil.  confessionem  et  elargi- 
tam  absolutionem  sacramentalem,  dicat  :  c  Insuper  auctoritate  apostolica  mihi 
specialiter  subdelegata,  super  veto  castitatis,  quod  emisisti,  ad  hoc  ut  debitum 
conjugale  licite  exigere  possis  tecum  dispense.  In  nomine  P.  et  F.  et  Spir.  S.  — 
Passio  Domini...  ». 

Cum  autem  in  casu  dispensetur  simpliciter,  et  non  tantum  dispensando  com- 
mutetur,  mitius  potest  procedere  confessarius,  pro  poenitentia  imponenda,  ac  in 
casu  quo  exequendum  habet  rescriptum  Romanum  :  in  hoc  nempe  commitlitur 
executor  ad  commutandum  dispensando,  idque  sub  iisdem  severis  clausulis 
quam  in  rescripto  concesso  in  ordine  ad  matrimonium  ineundum :  de  quibus 
infra,  sub  n.  398.  De  hisce  cf.  Planchard,  Dispenses,  nn.  589-600. 

2.  Distinctionem  inter  vota  ccehbatus,  virginitatis  et  castitatis,  videsis  apud 
ZiTELLi,  o.  c,  p.  98  et  Van  de  Burgt-Schaepman,  o.  c,  p.  326  et  330,  in  nota. 
Nimirum  *  objectum  voti  castitatis  est  abstinentia  ab  omni  delectatione  venerea, 
sive  externa,  sive  interna,  sive  licita...  sive  illicita  ;  voti  virginitatis  :  abstinentia 
a  primo  opere  carnali  consummato  ;  ccelibatus  :  abstinentia  ab  ineundo  conjugio ; 
suscipiendi  ordines  :  susccptio  sacri  Ordinis  subdiaconatus  ;  ingrediendi  Reli- 
gionem :  ingressio  Ordinis  religiosi  stricte  dicti,  scil.  cum  votis  solemnibus  ». 


228  THE  USE  OF  MARRIAGE 

telligi  respeciu prcBS&ntis  matrimonii :  soluto  enim  conjugio,  sponte  revivis- 
cunt. 

2.  Affinitas  superveniens. 
^3«.  ^     .  .         .       ^    . 

h)  ex  affinita-      Conjux,   contrahens  in  matnmonio  aiiinitatem  cum  comparte 

tUente^'    ^^^'  P^^  copulam  nempe  habitam  cum  persona  compartis  consan- 
guinea  in  i°  vel  2°  gradu,  amittit,  prcBier  expediium  jus  peiendi,  a 
ob  quam     quo   deciditur  ratione    adulterii,    licentiam    peUndi   debitum   ('), 
auferturjus  j^odo  copula  fuerit  formaliter  incestuosa  (*),  ac  formaliter  talis 
petendi      qualis  poenae  est  obnoxia(') :  a  qua  poena  excusat  non  tantum  igno- 
'     rantia    legis  ecclesiasticae  prohibentis,    sed    etiam    probabilius 
ignorantia  poenae  (*). 
nisi  conjux  ob     Neqne  jure  er^o  debitum /»g^t/ conjux  incestuosus,  neque  licite, 
*Vxa^etur"*  ^^^  potest  ac  debet  reddere  debitum  comparti,  sive  explicite  sive 
tacite  petenti,  quippe  cujus  jus  exigendi  manet  salvum,  nisi  ali- 
unde sit  ablatum  (*)  ;  haec  autem    compars  potest  licite  petere 
debitum  ac  etiam  petenti  licite  reddere  ("),  sed  non  debet  reddere, 


I.  Cap.  t,  4,  6,  10,  II,  X,  IV,  13. Quod  autem  limitatur  ad  affinitatem  in  1°  et  2° 
gradu,  eruitur  ex  eo  quod  Cone.  Trid.,  Sess.  XXIV,  c.  4,  ad  illos  gradus  restrin- 
xerit,  pro  affinitate  illicita,  vim  dirimendi  matrimonium  contrahendum  :  quae 
limitatio  merito  applicatur  affinitati  illicitae  supervcnienti,  quoad  vim  auferendi 
licentiam  petendi  debitum,  licet  contradicat  Pillet,  Dictionnaire  dc  Thcologie,v° 
Alfinitc.  Quae  nostra  interpretatio  confirmatur  ex  tenore  facultatis  S.  Pceniten- 
tiariae  mox  referendo.  Cf.  etiam  Santi,  o.  c,  ad  h.  1.,  n.  9.  Casterum  eadem 
restrictio  graduum  occurrit  in  Camp.  I,  c.  3,  IV,  13. 

a.  Ita  non  incurreretur  poena  a  parte  incestuosa  nesciente  complicem  esse 
compartis  consanguineam,  vel  ad  copulam  violenter  coacta. 

3.  Item  non  esset  poenae  obnoxius  conjux,  si  sciverit  quidem  complicem  esse 
compartis  consanguineam,  falso  autem  putaverit  earn  esse  consanguineam  in 
3»  tantum  vel  40  gradu  :  fuit  copula  formaliter  incestuosa,  sed  non  formaliter 
talis  qualis  poena  plectitur. 

4.  Ignorantia  poena  excusat,  saltem  probabiliter  a  poena  incurrenda,  quia  vide- 
tur  esse  poena  principaliter  medicinalis,  quae  proinde  ignorantem  non  afficit  ;  in 
quantum  autem  diceretur  poena  vindicativa,  etiam  non  incurritur  ab  eam  igno- 
rante,  utpote  extraordinaria.  Ignorantiam  legis  excusare  a  poena  passim  docetur, 
eo  vel  magis  quod  minitatur  in  eos  qui  scienter  crimen  admiserunt.  Cf.  Collat. 
Brug.,  t.  IV,  p.  430  s. 

5.  Si  compars  non  servavit  jus  exigendi,  neque  reddere  potest  pars  incestuosa, 
quia,  attento  tenore  cc.  4  et  10,  de  se  prohibetur  usus  matrimonii,  et  non  conce- 
ditur  facultas  reddendi,  nisi  ut  salva  sint  jura  compartis.  Cf.  n.  139. 

6.  Equidem  reddendo  debitum  cooperatur  ad  peccatum  compartis  incestuosae, 
quae  nee  jure  nee  licite  petit ;  ast  baud  difficile  adest  causa  cooperationem  legiti- 


THE   USE   OF  MARRIAGE  229 

sicut  in  casu  voti,  cum  hie  ab  incestuoso,  simul  cum  licentia 
petendi,  ablatum  sit,  ratione  adulterii,  expeditum  jus  debitum 
exigendi. 

Nota.  a/  Cum  prohibitio  petendi  debitum,  contra  incestuosum 
lata,  minus  stricta  sit,  uti  modo  notavimus,  quam  ilia  quae  urget 
votum  habentem,  potest  ipse  incestuosus  ab  hujus  legis  prohibi- 
tivae  observantia  excusari,  non  tantum  ob  impossibilitatem  prohi- 
bitionem  servandi,  sed  etiam  ob  gravem  at  urgentem  rationem, 
nisi  copia  sit  relaxationis  impetrandae. 

b/  Conjugi,  cui  propter  incestum  prohibetur  copula,  permittunt 
plures  Auctores  ('),  secus  ac  in  casu  voti  castitatis,  tactus  at  actus 
non  consummatos,  cum  prohibitio  Ecclasiae  sit  strictae  intarpreta- 
tionis. 

c/  Conjux  incestuosus  qui,  ratione  ignorantiae  legis  vel  poenae, 
poenam  evasit,  per  se  nionendus  est  pro  future  ;  atvero  per  accidans 
frequenter  continget  prudenter  abstineri  a  monitione,  nimirum 
ubi  poenitens  versatur  in  bona  fide,  ac  praevidetur  in  incestum 
relapsurus  et  legem  non  observaturus  (*).  Caeterum  passim  oppor- 
tunius  est  recurrere  ad  remedium  dispensationis. 

d/  Potest  ab  autoritate  ecclesiastica  dispensari,  seu  potest  resti- 
tui  licentia  debitum  petendi  :  cujus  licentiae  restitutioni  si  accedat 
restitutio  juris  {\.  gr.  per  condonationem  partis  innocentis),  jam 
nihil  impedit  quominus  jure  et  licite  petat  conjux  incestuosus. 

Porro  habent  Ordinarii  (et  in  specie  Ordinarius  Brugensis)  ('),  facultatem  aui  dispense- 
«  dispensandi  cum  incestuoso  seu  incestuosa  ad  petendum  debitum  conju-  ' 

gale,  cujus  jus  amisit  ex  superveniente  occulta  affinitate  per  copulam  carna- 
lem  habitam  cum  consanguinea  vel  consanguineo,  sive  in  prime,  sive  in 
prime  et  secundo,  sive  in  secunde  gradu  suae  uxeris  seu  respective  mariti ; 
rem  Ota  eccasiene  peccandi,  et  injuncta  gravi  poenitentia  salutari  et  confes- 


mans.  et  quidem  facilius  quam  in  casu  voti,  de  quo  sub.  n.  136,  si  simul  amissum 
est  a  parte  vovente  jus  petendi,  cum  hie  minus  stricta  sit,  quam  in  casu  voti, 
prohibitio  lata  ;  caeterum  Ecclesia,  in  statuendo  paenam  contra  delinquentem, 
non  intendit  ullatenus  gravare  partem  innoccntem. 

1.  CI.  S.  Alph.,  1.  VI,  n.  933 ;  Lehmkuhl.  o.  c,  II,  n,  846. 

2.  Collat  Brug.,  t.  IV,  p.  432. 

3.  Earn  subdelegatam  habent,  in  dicecesi  Brugensi,  Decani  habitualiter,  trans- 
eunter  autem  confessarii  missionis. 


23°  THE  USE  OF  MARRIAGE 

sione  sacramentali  singulis  mensibus,  per  tempus  arbitrio  dispensantis 
statuendum  >  (').  Cf.  infra,  n.  369. 

e/  Juvat  animadvertere  variam  conjugis  juridicam  conditionem 
quoad  usum  matrimonii,  in  casu  adulterii,  voti  castitatis  et  affini- 
tatis  supervenientis.  Per  aduUerium  nempe  amittity«s  expeditum, 
et  non  licentiam  petendi,  seu  potest  licite  rogare  et  non  valet  in 
rigore  juris  exigere  debitum  ;  per  votum  privatur  licentia  et  non 
jure  (excepto  scil.  casu  quo  voti  emissio  importat  renuntiationem 
juri),  ita  ut  non  possit  licite  petere  sed  valeat  rigorose  exigere  ; 
per  affiniiatem  amittit  jus  simul  ei  licentiam,  nee  adeo  potest  licite 
petere  nee  valet  exigere  debitum. 
Provisions  of  Observation  I.The  ancient  ecclesiastical  law,  of  which  we  find  traces  in 
'^S****^  the  Comp.  I,  c.  2  and  4,  IV,  13  (see  also  c.  8,  X,  IV,  13),  decreed  that 
cases  of  incest,  at  least  if  public,  should  be  punished  by  separation.  It  even 
appears  that,  in  certain  places,  by  an  abuse,the  innocent  party  was  permitt- 
ed to  contract  a  fresh  marriage  during  the  lifetime  of  the  delinquent  (*). 

This  was  not  permitted  by  the  common  law  of  the  Church,  which  prohi- 
bited the  re-marriage  of  the  guilty  party,  even  after  the  death  of  the  inno- 
cent party,  though  it  did  not  invalidate  it.  Later,  out  of  regard  for  the  inno- 
cent party,  cohabitation  was  tolerated  ;  but  the  use  of  marriage  was  limited 
to  the  demands  of  the  innocent  party. 

The  existing  ecclesiastical  law  (^)  still  contains  a  prohibition  against  the 
subsequent  marriage  of  the  incestuous  party  with  his  accomplice  ;  but  this 
has  fallen  into  desuetude.  At  the  present  time,  the  Holy  See,  in  removing 
the  prohibition  against  seekmg  conjugal  relations,  no  longer  inserts  in  the 
dispensation  the  clause  forbidding  a  second  marriage.  In  this  it  departs  from 
the  former  practice  (*). 
Effects  of  Observation  II.  Formerly  it  was  also  necessary  to  pronounce  separation 
supervenmg  gj^Q^^  torum  et  ntensam  against  husband  and  wife  who  contracted  spiritual 

relationship. 

I.  Formula  adhiberi  potest  ilia  quae  supra  proposita  est  pro  restituendo  jure 

petendi  debitum  per  votum  amisso  :  sufficit  indicare  diversam  causam  juris 
amissi,  nempe  «  per  copulam  habitam  cum  sorore  (vel  fratre)...  uxoris  (vel 
mariti)  tuae  ». 

3.  Thus  in  Synodo  Vermeriensi  of  which  further  under  no  200  ;  thus  also  Bur- 
chard  OF  Worms  in  Decreto,  L.  XVII,  cc.  10  et  11  (Migne,  P.  L.,  t.  CXL,  col. 
931),  where  he  embodied  the  decrees  of  the  aforesaid  council,  which  permits  a 
new  marriage  to  the  innocent  party.  Cf.  Esmein,  o.  c,  I,  p.  383  s. ;  II,  p.  67  s.; 
see  below,  no  300. 

3.  Chapters  i,  3,  8,  X,  IV,  13. 

4.  Cf.  Santi,  o.  c,  where  he  treats  of  this,  nos  8  and  g  ;  see  also  below,  n<^^ 
343  and  301. 


THE  USE  OF  MARRIAGE  23I 

relationship  with  one  another  (')•  This  penalty  is  analogous  to  that  inflicted 
on  incestuous  partners,  and,  like  it,  is  accompanied,  in  respect  of  the 
guilty  party,  by  an  absolute  prohibition  to  contract  a  second  marriage,  even 
after  the  dissolution  of  the  first  (*). 

This  discipline  was  subsequently  mitigated  : 

a/  In  the  first  place,  separation  was  no  longer  imposed  for  a  spiritual 
relationship  contracted  unconsciously {^),  or  for  baptism  administered  in  case 
of  necessity  (*),  or  again,  according  to  the  most  probable  opinion,  for  a 
relationship  contracted  maliciously  by  one  of  the  parties  for  the  purpose  of 
depriving  the  other  of  the  use  of  marriage  (^). 

b/  Secondly,  the  clause  prohibiting  second  marriages  disappeared. 

c/  Finally,  the  separation  clause  was  also  mitigated,  if  not  by  the  eccle- 
siastical law  itself  (•*),  at  least  by  the  interpretation  put  upon  it.  On  the 
analogy  of  the  case  incest,  it  was  limited  to  prohibiting  the  solicitation  of 
conjugal  intercourse,  and  this  prohibition  applied  only  to  the  guilty  party  ; 
in  this  manner  the  rights  of  the  innocent  party  were  safeguarded,  and  pro- 
vision made  for  the  maintenance  of  effective  cohabitation. 

The  ancient  penalties  still  keep  their  place  in  the  ecclesiastical  law  ; 
but  that  is  about  all ;  for  practical  purposes  they  may  be  ignored. 

Third  principle.  WheYe  one  of  the  parties  has  full  right  and 
liberty  to  make  use  of  the  nmrriage,  it  may  yet  happen  that  the  other 


X.  Cap.  2,  Causa  XXX,  question  i.  This  relationship  is  contracted  when  either 
of  the  parents  baptizes  their  own  child,  or  stands  as  sponsor  for  it  in  baptism  or 
confirmation. 

2.  Ibid.  ;  and  cap.  5,  which  treats  of  this  question  ;  see  also  no  34a. 

3.  L.  c,  c.  6  ;  also  c.  3,  X,  IV,  11. 

4.  Cap.  7,  causa  XXX,  i. 

5.  Cap.  4  et  5,  Causa  XXX,  i,  and  especially  cap.  2,  X,  IV,  11 :  «  Ideoque  nobis 
videtur,  ait  Alex.  Ill,  quod  sive  ex  ignorantia,  sive  ex  malitia  id  fecerint  (vir  vel 
mulier  contraxerint  cognationem),  non  sunt  ab  invicem  separandi,  nee  alter 
alteri  debitum  debet  subtrahere,  nisi  ad  continentiam  servandam  possint  induci : 
quia,  si  ex  ignorantia  factum  est,  eos  ignorantia  excusare  videtur  ;  si  ex  malitia, 
eis  sua  fraus  non  debet  patrocinari  vel  dolus  ».  Cf.  Schmalzgrueber,  o.  c, 
where  he  refers  to  this,  n"  46  s.  ;  Feyb,  De  Imped.,  n"  246  s.  ;  Wernz,  o.  c,  IV, 
no  498,  and  especially  notes  81  and  85;  Santi,  o.  c,  where  he  treats  of  this 
question. 

6.  All  the  texts  oiihcDecree,  in  Causa  XXX,  say  that  it  is  necessary  to  proceed 
to  separation  ;  also  the  decretal  of  Alex.  Ill,  quoted  above.  The  Rititale 
Romanum,  title  II,  c.I,  no  14,  does  not  expressly  speak  of  separation,  but  declares 
that  spiritual  relationship  is  an  impediment  to  all  use  of  marriage.  It  does  not 
say  a  word  of  the  prohibition  of  a  second  marriage. 


23*  THE   USE   OF  MARRIAGE 

party  may  have  good  and  sufficient  reason  for  refusing  the  marriage 

Grounds  of  Practically  these  reasons  resolve  themselves  into  the  following: 
from  the  mar-  conjugal  relations  would  cause  one  of  the  parties  a  serious  injury 
riage  debt,  or  a  notable  inconvenience  ;  however,  there  is  no  question  here 
of  a  physical  danger  so  great  that  the  very  fact  of  its  existence 
would  render  sexual  intercourse  unlawful.  In  order  to  judge 
of  the  validity  of  these  grounds  of  exemption  it  is  necessarj' 
to  take  into  account  the  persons  and  the  circumstances  ;  thus  a 
more  serious  reason  would  be  required  for  an  absolute  refusal 
than  for  merely  deferring  or  restricting  one's  compliance. 

The  wife's  want  of  strength,  for  instance,  may  not  be  a  sufficient 
reason  for  a  categorical  refusal,  but  may  be  enough  to  justify  a 
delay,  or  less  frequent  intercourse  (*).  In  like  manner  the  drunken 
state  of  the  husband,  even  though  partial,  seems  quite  a  sufficient 
reason  for  the  wife  to  defer  rendering  the  marriage  debt ;  for  it 
must  be  painful  to  a  self-respecting  woman  to  give  herself  up  to  a 
drunken  man,  to  say  nothing  of  the  possible  consequences  of  this 
condition  to  the  child,  in  the  event  of  pregnancy  ('). 

A  reason  sufficient  to  justify  an  absolute  refusal  (so  far  as  such 
reason  does  not  suffice  to  make  conjugal  relations  unlawful)  is 
the  danger  of  contracting  a  contagious  malady,  such  as  leprosy  (') 


I.  Notabiliter  immoderata  frequentia  in  debito  petendo  posset  etiam  esse  ratio 
a  reddendo  excusans  uxorem  bene  valentem,  sed  raro,  cum  aegre  determine- 
tur  norma,  quam  variam  proponunt  varii  Auctores,  quaeque  variatur  pro  diversa 
corporum  complexione.  Porronon  displicet  regula  quam  suggerit  Die  EIie,p. 
119,  quatenus,  infra  aetatem  50  annorum,  passim  non  noceat  sanitati  copula 
bis  repetita  in  hebdomada ;  ultra  50  annos,  restringatur  usus  matrimonii  et  vix 
non  abstineatur  ab  illo  inde  ab  aetate  60  annorum.  Caeterum,  uti  ibidem  notatur, 
p.  118,  experientia  docet  quaenam  frequentia  unicuique  individue  conveniat, 
prouti  quis  experiatur  copulam  corpori  esse  in  refocillationem  vel  potius  in 
fatigationem.  Cf.  etiam  Nystrom,  o.  c.,  p.  113  ss. 

3.  Cf.  Greidanus,  Geneeskundig  onderzoek,  p.  13. 

3.  Formerly  reasons  for  exemption  from  the  marriage  debt  were  admitted 
only  with  the  greatest  difficulty.  This  severity  is  truly  suggestive  Thus  the 
decretal  of  Alex.  Ill,  chap.  3,  X,  IV,  8,  decrees  :  «  That  if  one  of  the  parties  is 
stricken  with  leprosy,  and  nevertheless  demands  the  rendering  of  the  marriage 
debt,  the  healthy  party  must  comply  with  the  general  precept  of  the  Apostle, 
and  satisfy  the  other  party.  There  is  no  sufficient  reason  for  exemption*.  See 
also  ESMEIN,  o.  c,  II,  p.  13  s. 


THE  USE   OF  MARRIAGE  233 

or  syphilis  (').  The  same  must  be  said  of  the  special  risks  that 
some  women  incur,  who  know  from  experience,  or  from  what  the 
doctor  has  told  them,  that  every  confinement  will  mean  for  them 
the  danger  of  death. 

As  regards  ordinary  risks,  the  train  of  hardships  and  annoy- 
ances inseparable  from  pregnancy  and  motherhood,  affords  no 
sufficient  reason  for  refusal  ;  nor  the  number  of  children,  nor  the 
consequent  material  embarrassment,  apart,  perhaps,  from  the 
case  where  the  household  is  threatened  with  dire  and  chronic 
want,  and  the  husband  has  little  or  no  care  for  the  well-being  of 
his  family. 

Note.  1.  Where  a  sufficient  reason  for  exemption  exists,  the 
obligation  of  justice  ceases.  If,  however,  conjugal  intercourse 
is  still  lawiul,  the  obligation  of  charity  may  make  it  imperative, 
especially  when  it  is  a  question  of  saving  the  other  party  from 
incontinence.  We  have  already  spoken  of  this  above,  n°  131. 

The  confessor  ought  to  keep  these  different  points  in  view  ('). 

2.  Apart  from  the  recognised  causes  of  exemption,  there  are 
circumstances  in  which  it  is  equal  that  husband  and  wife  should 
show  consideration  for  one  another.  It  would  be  very  unkind  for 
the  husband  especially  always  to  insist  on  his  right.  He  ought  to 
keep  himself  in  check,  and  make  a  point  of  showing  his  wife  a 
disinterested  affection,  particularly  when  she  is  indisposed,  and 
during  her  pregnancy  and  confinement  ('). 

His  love  for  her  ought  to  suggest  such  a  course,  which  cannot 
fail  to  increase  her  love  and  affection  for  him.  See  below,  n°  336. 


1.  Ci.  Pr.  Quartalschr.,  1910,  p.  853  s.,  where  it  is  stated  that  the  danger  of 
contagion  in  case  of  syphilis  varies  with  the  phases  of  the  malady.  It  is  for  the 
doctor  to  decide.  The  same  article  observes  that  the  German  law  relieves  the 
doctor  of  the  obligation  of  professional  secrecy,  as  far  as  concerns  a  consort  who 
is  menaced  with  grave  danger  of  contagion  from  the  other  party. 

3.  Prudenter  igitur  se  gerat  confessarius  ne  incaute  excuset  conjugem  ab  omni 
obligatione,  ubi  sola  deficit  ohligaLtiojustitiae.Cetenim,  etiam  ubi  deest  ^Mo^wis 
obligatio,  prudenter  silebit  nonnunquam  vel  et  suadebit  reddendum  debitum, 
quando  secus  praevidentur  graviora  mala. 

3  It  is  desirable,  apart  from  the  danger  of  incontinence,  that  relations  should 
be  suspended  during  the  last  three  months  of  pregnancy,  out  of  regard  both  for 
the  wife  and  for  the  foetus. After  confinement,  the  same  rule  should  be  observed 
for  six  weeks  more.  See  above,  n"  134. 


234  THB  USE  OF  MARRIAGE 

Scholion  I.  Conjugal  relations  in  a  doubtful  marriage. 

ii2. 
Relations  in      If  the  validity  of  the  marriage  is  doubtful,  it  is  necessary  to 

marriale  inquire  into  it,  and  in  the  meantime  to  abstain  from  seeking  con- 
jugal relations,  but  not  from  submitting  to  them.  If  after  inquiry 
the  doubt  remains,  but  the  validity  is  nevertheless  probable,  as  a 
general  rule,  use  may  be  made  of  the  marriage  just  as  if  there 
were  no  questions  of  its  validity. 

Explanation. 

1.  Before  the  doubt  is  removed,  conjugal  relations  cannot  be 
solicited,  because  no  one  has  right  rashly  to  expose  himself  to  the 
sin  of  fornication.  Nevertheless  the  party  in  doubt  may  and  ought 
to  satisfy  the  party  who  is  not  in  doubt,  so  as  to  avoid  injuring 
that  party's  rights.  If  the  doubt  is  shared  by  both,  the  case  is  dif- 
ferent. 

2.  If  after  inquiry,  the  doubt  remains,  but  the  validity  is  nevertheless 
probable,  the  parties  may  avail  themselves  of  this  probability,  and 
therefore,  as  a  general  rule,  freely  make  use  of  the  marriage.  There 
is  here  no  reason  why  the  theoretical  probability  should  not 
pass  into  practical  certainty,  since  the  lawfulness  of  the  act  alone 
is  in  question. 

We  say,  as  a  general  rule  ;  for  we  must  except,  in  the  first  place, 
the  case  in  which  the  doubt  is  publicly  known,  and  to  continue 
living  together  would  involve  great  danger  of  scandal  (*).  In  the 
second  place,  we  must  except  the  case  of  a  marriage  that  is  doubt- 
ful on  account  of  a  previous  union  that  is  probably  still  in  exist- 
ence. Under  such  circumstances  the  question  of  the  right  of  the 
first  husband  or  first  wife,  whose  decease  is  doubtful,  comes  m. 
In  this  case  : 
contracted  in      a)  If  the  newly  married  parties  have  both  contracted  marriage 
"  '''*'    '    in  bad  faith,  that  is  to  say,  with  knowledge  of  the  doubt  in  quest- 
ion, they  can  neither  ask  nor  render  the  marriage  debt,  and  they 
must  separate.  For  then,  owing  to  their  bad  faith,  their  contin- 
gent right  must  yield  to  the  right  of  the  first  husband  or  wife  prob- 
ably still  living. 
or  in  good        b)  If  they  have  both  married  in  good  faith,  then  by  that  very  lact 
■''**   ■        their  right  holds  good,  and  they  can   make  use  of  the  marriage. 


I.  We  will  give  an  example  of  this  later,  in  no  300. 


THE  USE  OF  MARRIAGE  235 

c)  If  one  of  the  parties  only  was  in  good  faith  at  the  time  of  the 
marriage,  that  party  alone  can  act  without  restraint ;  for  the 
reason  already  given,  the  other  party  cannot  solicit  conjugal  rela- 
tions, but  may  and  ought  to  satisfy  the  party  in  good  faith,  whose 
claim  is  consequently  good  (*). 

Scholion  II.  Onanism. 

Below,  towards  the  end  of  the  second  part  of  this  work,  in  n<** 
330  and  the  tollowing,  whe  shall  professedly  speak  of  the  duty  of 
the  parish  priest  and  confessor,  to  instruct  those  about  to  marry 
and  those  already  married,  with  regard  to  the  use  and  abuse  of 
marriage.  We  think,  however,  that  it  is  desirable  to  make  here 
some  special  observations  on  the  subject  of  onanism  ;  for,  among 
the  sins  of  married  people  who  go  astray  in  the  use  of  marriage, 
none  is  greater,  and,  unfortunately,  none  of  more  common  occur- 
rence. 

I.  Its  meaning. 

Onanism  is  understood  in  different  ways  :  .^ 

1 .  Onanism  strictly  so  called  is  the  copula  had  in  vase  dehito,  but    Meaning  of 
with  complete  withdrawal  before  semination,  so  that  the  seminal  ' 
fluid  is  effused  extra  vas.  It  derives  its  name  from  Onan,   the  son 

of  Juda,  who,  as  we  read  in  Gen.,  XXXVIII,  9,  10,  committed  this 
crime. 

2.  In  a  wider  sense,  it  is  the  copula  had  in  vase  dehito,  and  effected  its  varieties, 
without  withdrawal,  but  with  the  employment  of  various  artifices 

to  prevent  proper  impregnation.  These  are:  a/  the  little  cloth  of 
fine  fabric  (vulgarly  known  as  a  condom)  wrapped  round  the  penis, 
and  serving  as  a  receptacle  for  the  seminal  fluid  ;  b/  the  pessarium 
occlusivum,  <  by  which  is  meant  a  small  instrument  introduced 
into  the  woman's  vagina,  near  the  orifice  of  the  uterus,  to  prevent 
the  seminal  fluid  from  entering  it  »  (Aertnys,  Fasciculus,  p.  88)  ; 
c/  the  siphunculus,  used  immediately  after  copulation  to  wash  the 


I.  The  Instruction  of  the  S.  C.  de  P.  F.,  in  1792,  gives  the  same  solution  :  «  Si 
qui  jam  nova  conjugia  contraxerunt,  et  quidem  in  bona  fide  existimantes  se  per 
interitum  conjugis  a  priori  conjugii  vinculo  absolutos,  relinqucndi  sunt  in  bona 
fide...  Si  eorum  alter  dubius  et  anceps  est,  reddere  quidem  debitum  potest, 
non  autem  petere.  Si  denique  uterque  mala  fide  contraxit,  jam  sunt  omnino 
separandi  ».  Collectanea,  n.  1366.  Cf.  case  solved  by  Sica,  o.  c,  p.  427  ss. 


236  THE  USE  OF   MARRIAGE 

seminal  fluid  out  of  the  vagina  (this  artifice  is  commonly  called 
in  French  «  moyen  de  proprete»);  d/ the  powder,  csilled  poudre 
anticonceptionnelle,  which  is  blown  into  the  vagina  before  coition, 
in  order  to  destroy  the  spermatozoids  :  a  pastille,  called  from  its 
object  spermathanaion  is,  in  like  manner,  introduced  into  the  vagina 
for  the  same  purpose  (*). 

Sometimes,  by  an  abuse  of  the  term,  the  copula  effected  with 
incomplete  withdrawal,  so  that  the  seminal  fluid  is  not  spilt,  but 
deposited  in  the  opening  of  the  vagina,  is  called  onanism  (*). 

The  practice  of  onanism  is  not  uncommonly  designated  Neo- 
Malihusianism,  inasmuch  as  it  is  a  debased  application  of  the 
theory  put  forward  by  Malthus  in  his  Essay  on  the  Principle  of 
Population  (first  ed.,  1798).  In  order  to  restrict  what  he  consider- 
ed the  excessive  propagation  of  the  human  race,  Malthus  recom- 
mended continency  in  the  married  life,  and  especially  the  post- 
ponement of  marriage,  as  a  means  of  diminishing  the  number  of 
children  (').  The  supporters  of  onanism  seek  to  attain  the  same 
end  by  inducing  married  people,  not  to  abstain  from  the  use  of 
marriage,  but  to  make  an  unnatural  use  of  it  (*). 


I.  See  the  description  of  these  practices  in  Forel,  o.  c,  p.  469-474;  of.  also 
Knoch,  L'Onanisme  conjugal  et  le  Tribunal  de  la  Penitence^  p.  23  ss. 

3.  What  is  known  to  theologians  as  masturbation, is  often  spoken  of  by  medical 
men  as  onanism.  Ct.  Gemelli,  o.  c,  p.  70. 

3.  Cf.  Card.  Mbrcibr,  L&ttre  Pastorale,  p.  423  ss.  ;  Vie  diocesaine,  1911,  p.  191 
ss.  ;  Vermeersch,  La  Peur  de  V  Enfant,  p.  us.,  and  more  at  length  Castelein, 
o.  c,  p.  601  ss. :  Le  Mouvemcnt  de  la  population  et  le  Malthusianisme ;  Greidanus, 
De  Leer  van  Malthus.  In  these  works  the  argument  that  the  Neo-M%lthusianists, 
following  the  example  of  Malthus,  bring  forward,  of  the  danger  of  excessive 
prolificacy,  is  refuted. 

4.  Widespread  is  the  name  oi prophylaxie  conceptionnelle,  and  the  introduction 
and  propagation  of  this  practice  is  increasingly  advocated  by  societies  establish- 
ed for  the  purpose,  by  daily  papers  and  by  magazines.  Cf.PAQUET,  I.e.,  p. 265  s.; 
N.  R.  th.,  1911,  p.  596  ss.  ;  Lemozin,  1.  c,  p.  782  s.  In  this  same  direction  of 
onanism  tends  also  the  not  uncommon  practice  oi  ovariotomy  or  vasectomy.  Vasec- 
tomy, in  the  case  of  the  man,  consists  in  making  an  incision  in  the  scrotum  and 
severing  the  vas  deferens  or  duct  that  conveys  the  seminal  fluid,  produced  by  the 
testicles,  to  the  semmal  vesicles,  and  so  preventing  its  issue.  In  the  case  of  the 
woman  (when  it  is  known  as  oophorectomy  or  fallectomy) ,  it  consists  in  the  sever- 
ing of  the  oviduct,  or  duct  that  leads  from  the  ovaries  to  the  matrix  and  con- 
veys the  mature  ovula.  Dr  Mauley  describes  the  surgical  operation,  m  the 
Eccles.  Review,  t.  XLIV,  p.  684  ss. 


THE  USE   OF   MARRIAGE  237 

II.  Its  malice.  ... 

144. 

The  essential  inordinary  of  onanism  consists  in  this,  that  it  is  its  malice. 
directly  opposed  to  the  purpose  of  the  Creator,  in  making  the 
copula  carnalis  a  means  for  the  procreating  and  infoiTning  of  off- 
spring. Hence  it  is  a  sin  of  luxury  against  nature,  and  a  most  griev- 
ous one,  since  it  concerns  a  matter  of  the  greatest  moment,  on 
which  the  whole  framework  of  society  may  be  said  to  rest  ('). 

This  malice  is  insirinsic  to  the  act,  so  that  no  reason,  however 
urgent,  can  excuse  it  ;  nor  does  the  married  state  remove  the 
malice,  for,  though  the  conjugal  bond  makes  lawful  the  sexual 
intercourse  of  married  people,  it  does  so  only  when  such  inter- 
course is  per  se  rightly  ordered  for  the  purpose  of  generation  ;  and 
this  is  the  only  sexual  intercourse  that  husband  and  wife  acquire 
a  right  to  in  respect  of  one  another. 

In  addition  to  this  essential  inordinacy  there  is  the  grave  injury 
that  threatens  those  who  practise  onanism,  more  especially  the 
wife :  both  from  the  fact  that,on  the  excitation  of  the  sexual  organ- 
ism,the  natural  complement,the  reception  of  the  male  seed,  is  vio- 
lently withdrawn  (*),  and  also  from  the  lesion  which  easily  follows 
on  the  use  of  various  onanistic  contrivances,  such  as  the  pes- 
sarium  occlusivum  (').  Most  deplorable  are  the  consequences  that 


1.  This  does  not  apply  to  the  practice  mentioned  above  as  being  wrongly 
called  onanism.  This  practice  is  not  contra  naturam,  since  it  does  not  prevent 
generation,  but  is /)ra«fer  naturam,  and  induces  a  slight  inordinacy,  that  may 
be  excused  where  there  is  some  little  reason  for  it. 

2.  Cf.  EscHBACH,  Disputationes,  p.  573  s.  ;  Surbled,  La  morale  dans  ses  raP' 
ports,  t.  I,  p.  193  :  «  Les  excitations  repet6es  de  I'uterus,  sans  conclusion  natu- 
relle,  amenent  les  troubles  les  plus  graves  de  cet  organe  (metrites,  deviations, 
tumeurs,  etc.).  D'autre  part,  la  vie  purement  sensuelle,  privee  de  repos  et  de 
detente,  ebranle  a  la  longue  le  systeme  nerveux  de  la  femme  et  la  conduit  aux 
troubles  varies  de  I'hysterie,  et  quelquefois  au  desastre  de  la  folic  ».  Also 
Desplats,  o.  c,  p.  42  ss. 

See  PiNKHOF,  Pro  et  Contra,  p.  25  ss.,  where  he  enumerates  the  various 
physiological  and  moral  disorders  following  on  the  practice  of  onanism. 
Cf.  also  KouwER,  o.  c,  p.  18,  where  he  declares  that  the  practice  of  onanism 
is  at  the  ver^'  least  anti-physiological,  and  that  consequently  there  is  good 
reason  for  fearing  that  it  is  injurious,  though  this  may,  perhaps,  be  incapable 
of  scientific  proof.  Nystrom,  o.  c,  167  and  381,  acknowledges  that  onanism, 
strictly  so  called  and  effected  by  withdrawal,  is  injurious,  but  denies  that  it 
is  so,  where  the  little  cloth  or  other  contrivance  is  employed. 

3.  Cf.  Dr.  Damen,  o.  c,  p.  113  s.,  where,  in  opposition  to  Treub,  he  maintains 


238  THE   USE   OF  MARRIAGE 

follow  in  the  increase  of  abortion  and  fornication  ('),  and  in  the 
decrease  of  population  in  countries  where  this  abominable 
practice  prevails  ('). 

Onanism  is  severely  reprehended  in  Holy   Scripture  ('),  and 
has  been  repeatedly  condemned  by  the  Holy  See  (*). 


the  existence  of  this  danger,  not  indeed  from  the  actual  use  of  the  pessarium, 
but,  as  frequently  happens,  from  its  faulty  application.  On  p.  109  s.,  the  same 
writer  solves  the  objection  that  is  raised  against  the  Catholic  doctrine  on  the 
score  of  excessive  increase  of  the  human  race. 

1.  Experience  teaches  us  that  with  the  spread  of  Neo-Malthusianism  there 
is  an  increase  of  abortion.  Thus  at  Liege,  in  Belgium,  where  this  doctrine  is 
very  widespread,  Dr.  Dejace  tells  us  that  one  out  of  every  three  cases  of  preg- 
nancy is  terminated  criminally  ;  cf.  also  A''.  R.  th.,  1911,  p.  601.  There  is  also 
an  increase  of  fornication,  owing  to  the  lessened  fear  of  pregnancy.  See  Forst- 
MANN  EN  AusEMS,  o.  c,  p.  59  ss.  ;  PiNKHOF,  1.  c.  ;  Greidanus,  Dc  Utr  van 
Malthus,  p.  26  ss. 

2.  Cf.  Etudes  Religieuses,  t.  XCIII  (1898),  p.  iiiss. ;  Reforme  sociale,  t.  XXXI 
(1896),  p.  338  ss.  In  the  latter  is  given  a  statistical  account  of  the  families  of  La 
Parade,  in  France  :  «  La  commune  compte  170  manages  reguliers...  et  ces  170 
manage  se  d^composent  ainsi  :  menages  sans  enfants,  48 ;  menages  ayant  i 
enfant,  80  ;  ayant  2  enfants,  18  ;  ayant  3  enfants,  16 ;  ayant  4  enfants,  6 ;  ayant 
5  enfants,  i ;  ayant  7  enfants,  i  ;  ces  170  manages  ont  248  enfants,  ce  qui  met  la 
moyenne  des  enfants  au-dessous  de  2  par  menages  » .  Further  on  he  adds ; 
«  I'histoire  d6mographique  de  La  Parade  est  celle  de  la  plupart  des  localit^s  de 
la  region  (d^partement  de  Lot-et-Garonne)  ».  See  also  Coppens,  o.  c,  p.  100  ss., 
where  may  be  found  evidence  as  to  this  vice  in  America  at  least  in  heterodox 
families  :  «  c'est  un  fait,  la  famille  amdricaine  qui  a  plus  d'un  ou  de  deux  enfants 
est  une  exception  »  ;  Bureau,  La  crise  morale  des  Umps  nouveaux,  Paris,  4th  ed., 
p.  53-63 ;  Dbsplats,  De  la  Depopulation  par  I'lnfecondite  voulue,  Annales  de  la 
Soci^t6  scientifique  de  Bruxelles,  1907-1908,  Supplement.  Finally,  see  Card. 
Mercier,  o.  c,  near  the  beginning  ;  Knock,  L'Onanisme,  p.  4  ss.,  where 
various  statistics  are  given  ;  Paquet,  1.  c,  p.  258  ss.;  Lemozin,  1.  c.  p.  771-777  ; 
Archivfur  k.  Kirchenr.,  1912,  p.  155-163. 

3.  In  Gen.,  XXXVIII,  9,  10,  we  read  that  Onan,  «  when  he  went  in  to  his 
brother's  wife,  spilled  his  seed  upon  the  ground,  lest  children  should  be  born 
in  his  brother's  name.  And  therefore  the  Lord  slew  him,  because  he  did  a 
detestable  thing  ».  From  the  text  and  context,  however,  it  would  seem  that  the 
blame  of  the  sacred  writer  applies  directly  and  formally  to  the  wrongful  frus- 
tration of  the  law  of  the  levirate,  intended  by  Onan,  rather  than  to  the  spilling 
of  his  seed.  , 

4.  The  C.  S.  O.,  21  May  1851,  in  answer  to  the  first  proposition  :  c  for  good 
reasons  married  people  may  use  marriage  as  Onan  used  it  »,  declared  the  pro- 
position to  be  «  scandalous,  erroneous  and  contrary  to  the  natural  law  of 
marriage  >.  Cf.  also  the  same  declaration  ad  2",  in  the  N.  R.   th.,  XVIII,  p. 


THE  USE  OF  MARRIAGE  239 

III.  The  duty  of  the  confessor  (*).  145. 

.^11  r  •       •  Duty  of  th* 

A.  The  duty  01  questioning.  confessor  : 

If  married  persons  make  no  mention  in  confession  of  sins  com-  I'to  question, 
mitted  in  the  use  of  marriage,  and  in  particular  of  onanism,  and 
there  is  no  special  reason  for  suspecting  this  vice,  they  are  not  to 
be  questioned,  except  in  a  general  way  as  to  the  proper  fulfilment 
of  the  duties  of  their  state  of  life  ;  and  the  confessor  will  do  well 
to  refrain  even  from  such  a  general  inquiry  in  dealing  with  peni- 
tents, who  from  their  confession  or  otherwise  are  evidently  strang- 
ers to  this  vice. 

But  if  after  taking  into  consideration  the  penitent's  state  of 
life  and  other  evidences,  a  prudent  judgment  points  to  a  well 
founded  suspicion  of  onanistic  practices  (*),  as  a  rule,  the  con- 
fessor is  bound  to  make  a  closer  examination  and  press  his 
questions  with  greater  insistence  :  «  it  may  be  asked,  v.  gr., 
if  the  penitent  has  led  a  truly  Christian  life  in  the  married 
state ;  or  if  there  is  any  trouble  of  conscience  with  regard  to 
the  marriage  duties  ;  or  in  general  it  would  be  better  to  ask 
even  more  explicitly,  if  the  penitent  conforms  to  the  Divine 
will  as  to  the  number  of  children,  or  trusts  entirely  to  Divine 
Providence  with  regard  to  the  generation  of  offspring  (')  ».  This 

537.  To  the  question  :  «  is  the  imperfect  use  of  marriage,  whether  onanistically 
or  condomistically  effected,  as  in  the  case,  lawful  »,  it  replied,  19  Apr.  1853, 
«  No,  for  it  is  intrinsically  evil  ». 

I.  For  the  office  of  the  parish  priest  in  this  matter,  we  refer  the  reader  to  nos  334 
ss.,  where  we  professedly  speak  of  the  duty  of  the  parish  priest  in  dealing  with 
married  persons.  In  the  same  place  we  shall  explain  the  general  principles,  also 
applicable  here,  which  govern  the  office  of  the  confessor  with  relation  to  married 
persons  and  those  about  to  marry. 

The  duty  of  the  parish  priest  and  confessor  is  laid  down  in  the  Instructioncs 
contra  vitiutn  onanismi,  put  forth  by  the  Bishops  of  Belgium  for  parish  priests 
and  confessors  in  1909. 

3.  «  This  well  founded  suspicion  will  more  readily  exist  if  the  penitent  leads  a 
worldly  and  indevout  life,  and  confesses  other  grave  sins  against  chastity...  if 
there  is  rare  and  very  rare  approach  to  the  sacraments,  especially  if  this  evil 
practice  is  very  prevalent  in  the  locality.  On  the  other  hand  there  will  be  less 
reason  for  fear.if  the  penitent  already  has  a  numerous  family ,confesses  each  and 
every'  sin  with  great  care,  and  frequently  approaches  the  sacraments  ».  Collatio- 
nes  Tornacenses,  1910,  p.  41 1. 

3.  Instructioncs  I.e.,  p.  458.  Cf.  Knock,  L'Onanisme  Conjugal...,  p.  ^2  s.  But 
where  peculiar  circumstances  advise  greater  prudence,  and  it  seems  necessary 


240  THE   USE   OF  MARRIAGE 

doctrine  is  confirmed   by   the  utterances   of  thee  Holy   See  (*). 

We  say,  as  a  rule  :  because  it  may  happen  exceptionally  that  mar- 
ried people  are  in  good  faith  in  this  matter,  and  that  it  is  expedient 
that  the  confessor  should  leave  them  in  that  state. 

Good  faith  may  exist,  though  rarely  and  here  and  there  for 
a  brief  period  only ;  for,  the  intrinsic  inordinacy  of  onanism,involv- 
ing  as  it  does  a  sin  against  nature  ('),  does  not  easily  escape 
notice,  especially  at  the  present  time  when  the  malice  of  this  sin 
is  so  strongly  insisted  on,  and  its  deplorable  results  are  so  plainly 
apparent.  Where  there  is  good  faith,  and  where  it  is  not  likely  to 
be  forthwith  disturbed,  the  confessor  may  sometimes  refrain  from 
questioning  the  penitent,  namely,  when  he  has  good  reason  to 
fear  that  his  questions  and  advice  would  produce  no  good  result. 

This  departure  from  the  general  rule,  however,  must  be  made 
with  prudence  and  reserve,  and  the  fear  of  the  penitent's  unrea- 


to  proceed  more  cautiously  so  as  to  avoid  offending  the  penitent,  a  spontaneous 
confession  may  be  elicited  by  counselling  the  married  person  to  observe  faith- 
fully the  laws  of  married  life,  to  ask  God's  blessing  on  present  or  future  offspring 
and  to  take  solicitous  care  of  the  same  as  a  divine  trust. 

I.  Thus  the  reply  of  the  S.  Penitentiaria  of  10  March  1886  to  the  first  quest- 
ion :  «  When  there  is  a  well  founded  suspicion  that  a  penitent  who  maintains  a 
complete  silence  on  the  subject  of  onanism,  is  addicted  to  this  vice,  is  it  lawful 
for  the  confessor  to  abstain  from  a  prudent  and  discreet  questioning,  because 
he  foresees  that  many  will  be  disturbed  in  their  good  faith  and  forsake  the  sacra- 
ments ?  —  or  is  not  the  confessor  rather  bound  to  put  prudent  and  discreet 
questions  ?  »,  was  :  *  as  a  rule,  negatively  to  the  first  part,  affirmatively  to  the 
second  part  ». 

The  N.  R.  th.,  XVIII,  p.  359  ss.,  gives  the  full  text ;  on  p.  537  may  be  found 
the  declaration  of  the  C.  S.  O.,  of  1851,  of  which  above,  ad  3™,  deciding  that  the 
proposition,  according  to  which  «  it  is  never  expedient  to  question  married 
people  of  either  sex  on  this  subject,  even  if  there  is  a  reasonable  fear  that  they, 
whether  husband  or  wife,  abuse  marriage  »,  is  «  false,  excessively  lax  and  dan-^ 
gerous  in  practice  ». 

3.  «  En  effet  ce  pech6  met  I'^poux  en  opposition  flagrante,  directe  et  radicale, 
avec  la  fin  premilre  et  principale  du  mariage  :  la  procreation  de  I'enfant,  I'exis- 
tence  et  le  developpement  de  la  society  humaine.  Engage  dans  le  mariage,  plac6 
dans  des  conditions  normales  d'intelligence  et  de  discernement,  un  homme,  k 
moins  de  fermer  volontairement,  obstinement,  les  yeux  a  la  lumiere,  ne  pent  se 
meprendre  sur  I'obligation  primordiale,  de  droit  naturel,  qu'implique  I'exercice 
des  rapports  conjugaux  >.  Knock,  1.  c,  p.  a8,  where,  and  on  the  following  page, 
he  treats  very  well  of  the  good  faith  that  exceptionally  exists,  and  of  the  causes 
from  which  it  may  arise. 


THE  USE  OF  MARRIAGE 


241 


diness  to  obey  must  not  be  merely  imaginary.  Even  where  it  is 
quite  evident  that  the  penitent  will  not  prove  amenable,  it  is  often 
better  to  make  the  inquiry  :  because,quite  apart  from  the  fact  that 
the  state  of  good  faith  cannot  last  for  long,  there  is  the  danger, 
especially  at  the  present  time,  when  these  matters  are  receiving  so 
much  attention,  that  the  confessor's  silence  may  be  mistaken  for 
tacit  approval  both  by  the  penitent  himself  and  by  those  who  come 
to  hear  of  it.  This  would  be  very  detrimental  to  the  public  good. 

B.  The  duty  of  admonishing  and  instructing. 

As  regards  married  persons  whom  the  confessor  knows,  either 
from  their  spontaneous  statement  or  from  prudent  questioning, 
to  be  addicted  to  the  practice  of  onanism,  the  hypothesis  is  two- 
fold :  either  it  is  a  case  of  a  wife  with  an  onanist  husband,  with 
whom  ihe  co-operates  merely  materially  ;  or  it  is  a  case  of  married 
people  who  knowingly  and  wilfully  practise  onanism  ;  exceptionally 
it  may  happen  that  one  or  the  other  of  them  may  be  in  good  faith 
and  look  upon  the  practice  as  lawful:  the  penitent  indeed  mentions 
the  matter  in  confession,  but  does  not  accuse  himself  of  it  as  of  a 
sin,  because  he  thinks  there  is  no  evil  in  it,  or  believes  that  it  is 
excusable. 

The.  first  question,  therefore,  is,  whether  married  persons,  who 
are  found  in  confession  to  be  given  to  the  practice  of  onanism, 
are  always  to  be  admonished  of  the  gravity  of  the  sin,  even  when 
they  are  in  good  faith.  The  second  question  is,  how  are  wives  who 
merely  co-operate  in  onanism  to  be  instructed. 

In  answer  to  the^rs^  question  : 

Married  persons,  who  tell  their  confessor  in  confession  that  they  are 
addicted  to  onanism,  must  be  most  severely  admonished  of  the 
exceeding  gravity  of  that  sin,  in  accordance  with  the  rule  incul- 
cated by  the  Holy  See  itself  (•). 


U6. 

2°  to  admo- 
nish and 
instruct : 


I.  The  S.  Penitentiaria,  10  March  1886,  1.  c,,  in  answer  to  the  second  question, 
«  whether  a  confessor  who  learns,  either  from  spontaneous  confession  or  from 
prudent  questioning,  that  his  penitent  is  an  onanist,  is  bound  to  admonish  him 
of  the  gravity  of  this  sin...  and  to  reprehend  him  with  paternal  charity,  and  to 
give  him  absolution  only  when  it  is  made  certain  by  sufficient  signs  that  the  said 
penitent  is  sorry  for  the  past,  and  has  the  purpose  of  not  acting  onanistically  for 
the  future  »,  replied :  <  In  the  affirmative,  according  to  approved  authors  ». 

16 


aj  married 

persons 

practising 

onanism  : 


242  THE  USE  OF  MARRIAGE 

This  rule  is  absolute,  and  admits  of  no  exception,  whenever  the 
confessor  is  directly  asked  about  the  morality  of  the  said  act,  or 
when  the  penitent  is  in  doubt  about  it. 

But  if  it  is  a  question  of  a  penitent  who  in  good  faith  thinks  that 
it  is  lawful  for  him,  and  there  is  no  hope  that  the  admonition 
would  be  of  any  effect :  looking  at  the  matter  in  the  abstract,  it 
may  be  in  strict  law  permissible,  in  this  hypothesis  also,  to  leave 
him  in  good  faith  ;  but  practically,  and  taking  the  matter  in  the 
concrete,  there  can  never,  or  hardly  ever,  be  good  ground  for 
taking  such  a  course. 

Indeed,  the  reasons  that  we  have  given  under  A,  against  keeping 
silence  and  refraining  from  putting  questions,  are  oi  the  greatest 
cogency  here  ;  for,in  this  case  the  silence  of  a  confessor  who  does 
not  condemn  the  act,  when  it  is  equivalently  submitted  to  his 
judgment,  amounts  to  approval,  and  there  is  very  great  reason 
to  fear  that  such  silence  would  become  a  matter  of  common  talk, 
with  the  most  deplorable  consequences  to  public  morality  ('). 

Taking  all  this  into  consideration,  we  are  of  opinion  that  the 
practice,  set  forth  in  the  Instructions  of  the  Belgian  Episcopacy,  is 
to  be  intepreted  and  applied  strictly,  viz.,  that  in  exceedingly  ran 
cases  it  is  lawful  to  leave  in  good  faith  a  penitent  who  is  found  in 
confession  to  be  addicted  to  this  vice.  It  is  to  be  further  observed 
that  the  Instructions  permit  this  only  under  the  condition,  which  is 
scarcely  ever  fulfilled,  that  here  is  no  danger  of  the  confessor's 
silence  being  noised  abroad.  There  is  the  greater  necessity  to 
insist  on  this  strict  interpretation,  as  confessors  for  the  most  part 
are  inclined  to  take  the  more  lenient  view  (*). 


This  rule  had  been  already  set  forth  by  the  S.Penitentiaria,  14  Dec.  1876,  (see 
N.R.  th.,  XVIII,  p.  536  ss.),  where  it  teaches  that  a  confessor  docs  not  satisfy  his 
obligation,  who,  «  when  a  penitent  merely  accuses  himself  of  onanism,  maintains 
a  complete  silence,  and,  when  the  confession  of  sins  is  finished,  in  general  terms 
excites  the  penitent  to  contrition,  and,  on  his  assurance  that  he  detests  every 
mortal  sin,  gives  him  absolution  >. 

I.  «  Ce  silence  ne  restera  pas  longtemps  le  secret  du  confessional,  Nombre  de 
p6nitents,  soit  bavardage,  soit  desir  de  s'excuser,  en  saisiront  leur  entourage  : 
I'erreur  s'accr6ditera,  la  contagion  fera  de  nouvelles  victimes  >.  Knock,  o.  c, 
p.  35.  Cf.  also  Vermeersch,  Un  grave  peril,  p.  43. 

3.  Therefore,  as  we  have  just  said  above,  never  or  scarcely  ever  would  there 
be  room  for  the  silence  of  the  confessor  in  this  matter.  And  indeed  such  and  so 
great  a  good  may  be  looked  for  from  the  uniform  severity  of  all  confessors  in 


THE  USE  OF  MARRIAGE  243 

In  answer  to  the  second  question  : 

The  following  rules  for  instructing  and  admonishing  a  wife  who  b)  a  wife  co- 
maierially  co-operates  in  onanistic  intercourse  (*),  are  to  be  applied  o«a»^  •" 
as  occasion  offers  : 

1 .  A  wife  is  never  bound  in  justice  to  render  the  marriage  debt  to 
a  husband  seeking  intercourse  that  is  onanistic  in  any  way  what- 
ever. The  reason  is  that,  according  to  what  we  have  said  above, 
she  has  not  yielded  power  over  her  body  except  for  the  purpose  of 
sexual  intercourse  that  is  of  itself  apt  for  generation. 

2.  She  is  not  allowed  to  render  the  marriage  debt  to  a  husband 
who  solicits  her  to  have  intercourse  with  him  condomistically, 
using  the  little  cloth  or  wrapper  ;  for  that  would  be  immediate  par- 
ticipation in  an  act  intrinsically  evil,  as  being  inordinate. 

It  is,  therefore,  the  duty  of  the  woman  in  question  to  offer  posi- 
tive and  physical  resistance  to  the  best  of  her  ability,  just  as  a 
girl  must  resist  the  attempt  to  seduce  her  :  «  only  for  the  gravest 
cause,  namely  for  the  fear  of  death,  or  of  some  like  evil,  would  it 
be  lawful  for  her  not  to  resist  her  oppressor  »  (*). 


condemning  this  crime,  when  discovered  in  confession,  that  it  seems  right  to 
ignore  altogether  the  very  rare  case  in  which,  for  the  good  of  the  individual,  it 
might  perhaps  be  passed  over  in  silence.  On  the  part  of  one  or  two  penitents, 
perhaps,  this  greater  severity  might  occasion  a  neglect  of  the  sacraments  which, 
by  an  indulgent  silence,  might  have  been  deferred  for  a  time  ;  but,  on  the  other 
hand,  it  will  exert  a  most  salutary  influence  on  the  faithful  as  a  whole,  and, 
when  there  is  no  longer  any  discrepancy  in  the  practice  of  confessors,  it  will 
bring  all  to  an  intimate  conviction  that  onanism  is  to  be  condemned  without 
mercy  and  that  no  terms  can  be  made  with  it.  c  Ce  ^  quoi  il  faut  arriver,  c'est 
que  Ton  sache  que  le  pretre,  non  pas  vous  tout  seul,  mais  tout  pretre,  I'Eglise 
enfin,  tient  pour  pech6  grave  I'onanisme.  Li-dessus  viendra  encore  k  confesse 
qui  voudra,  mais  au  moins  ceux  qui  y  viendront  avec  sinc6rit6  seront  pr^venus 
qu'ils  auront  a  s'accuser  de  cette  miserable  pratique  et  k  s'en  abstenir.  Les  gens 
de  foi  et  de  religion  chancelante  pourront  deserter  ;  les  Chretiens  resteront ». 
Collat.  Tornac.,  1.  c,  p.  413,  according  to  the  Ami  du  clerge. 

X.  We  therefore  preclude  from  the  case  in  which  the  woman  herself  employs 
some  preservative  instrument,  such  as  the  pessarium  occlusivum,  or  injects 
some  liquid  or  powder  to  destroy  the  spermatozoids  ;  we  preclude  also  from  all 
consent  to  onanistic  intercourse,  and  from  all  incitement  to  the  same,  whether 
direct,  or  indirect  by  complaints  about  the  number  of  children,  the  danger  of 
childbirth  etc. ;  for,  this  would  be  formal  co-operation,  and  the  principles  already 
given  above  apply  to  it. 

a.  Thus  the  Instructions,  p.  459  s.  Cf.VERMEERSCHjI/w^yaw  Peril,  p.  9;  KrfocH, 


244  THE  USB  OF  MARRIAGE 

3.  If  she  knows  that  her  husband  intends  to  have  intercourse 
with  withdrawal :  a/  she  can  render  the  debt  for  a  grave  cause,  and 
with  due  precautions ;  b/  she  can  seek  the  debt,  but  only  for  a 
still  graver  cause. 

The  fact  that  for  a  grave  reason  she  can  render  the  debt,  arises 
from  this,  «  that  in  the  case  proposed,  the  woman  on  her  part, 
does  nothing  that  is  contrary  to  nature,  and  assists  in  that  which 
is  lawful,  while  all  the  inordinacy  proceeds  from  the  malice  of 
the  husband,  who,  instead  of  consummating,  withdraws  and 
effuses  Qxtra  vas  »  (*)  :  thus  her  cooperation  is  not  immediate, 
but  only  mediate,  from  which  a  grave  reason  excuses  :  while 
charity,  which  would  require  the  wife  to  prevent  her  husband's 
sin,  does  not  bind  when  the  contingent  inconvenience  is  so 
great. 

That  agrave  cause'is  required,  rollowsfrom  this,that/of  the  mediate 
co-operation,  strictly  so  called,  in  the  husband's  sin,  there  is  requir- 
ed a  reason  that  compensates  for  the  evil  effect  in  which  the 
wife  co-operates  :  viz.  it  is,  in  truth,  an  unseemly  act  (actio 
male  sonansj,  and  its  inordinacy  must  be  counterbalanced  by 
some  proportionate  cause  (*). 

A  sufficient  cause  is  :  «  if  the  denial  of  it  (the  debt)  would  be 
resented  by  her  husband,  and  she  would  have  reason  to  fear 
grave  inconvenience  to  herself  therefrom  »  (^).  Responstim  S. 
Penitentiariae,  15  Nov.  1816,  1.  c. 


o.  c,  p.  44,  where  is  quoted  the  decree  of  the  C.  S.  O.,  or  19  Apr.  1853,  in  which 
to  the  doubt :  «  Can  a  wife,  with  knowledge  of  the  fact,  remain  passive  in  con- 
domistic  intercourse  ?  >,  an  answer  is  given  :  «  in  the  negative,  for  she  would  then 
be  assisting  in  a  thing  intrinsically  evil  ». 

1.  Reply  of  the  S.  Penitentiaria,  of  23  Apr.  1823,  in  the  Theol.  Mechl.,  o.  c, 
p.  140  s.  ;  compare  with  reply  of  the  same  S.  Penitentiaria,  of  15  Nov.  1816, 1.  c, 
and  in  the  N.R.  Th.,  t.  IX,  p.  326. 

2.  The  principles  concerning  co-operation  which  are  applied  here,  are  ex- 
plained by  the  Right  Rev.  Mgr.  Waffelaert,  Etude  de  Theologie  morale  sur  la 
cooperation,  Bruges,  1883,  p.  1-13. 

3.  <  But  then...  the  wife  would  undergo  grave  inconvenience  :  1/ if  there  is 
reason  to  fear  death,  blows,  or  serious  acts  of  cruelty,  which  must  be  judged 
from  the  circumstances  of  the  parties  concerned... ;  2/  if  there  is  a  well  founded 
fear  that  the  husband  will  keep  a  concubine  in  the  house  and  live  with  her  in 
marital  relations,  or  even  make  a  practice  of  visiting  her  elsewhere,  or  consort 
with  prostitutes  ;  3/  if  she  knows  for  certaio  that  her  husband,  angered  by  a 


THE  USE  OF   MARRIAGE  245 

The  precautions  to  be  taken  are  :  a/  to  remove  scandal,  by  pro- 
testing before  her  husband,  as  far  as  circumstances  permit, 
against  the  commission  of  so  great  a  crime  ;  b/  that  she  should 
not,  either  directly  or  indirectly,  incite  her  husband  to  onanism, 
but  should,  with  all  the  earnestness  she  can,  endeavour  to  turn 
him  from  such  a  sinful  act,  and  should  moreover  detest  the  act 
itself  and  in  no  way  consent  to  the  intercourse  in  so  far  as  it  is 
onanistic,  nor  to  delectation  in  it  as  such,  although  she  may  take 
pleasure  in  the  intercourse  itself,  and  even  in  its  result,  while 
detesting  the  cause. 

That  a  graver  cause  is  required  for  seeking  the  debt  is  evident, 
since  to  the  co-operation  in  the  restricted  sense,  which  is  found  in 
the  rendering  of  the  debt,  there  is  added  co-operation  in  the  wider 
sense,  since  by  her  solicitation  the  wife  influences  her  husband  to 
an  intercourse  which  she  foresees  will  be  onanistic.  Such  a  cause 
would  be  the  imminent  danger  of  incontinency. 

«  Even  in  this  case  »,  as  the  Instructions  tell  us,  «  the  tendency 
must  be  rather  in  the  direction  of  severity  than  of  laxity  in  her 
regard,  lest  the  result  should  be  that,  while  men  are  denied  the 
sacraments,  by  a  subtle  distinction  women  who  indulge  in  onanism 
are  freely  admitted  to  them  >. 

C.  The  duty  0/ remedying. 

1*7. 

1 .  Insist  on  the  gravity  of  the  sin  :  showmg  how,  on  the  Imes  of  50  to  remedy, 

what  we  have  said  above,  an  act  of  luxury  against  nature  is 
committed,  and  the  end  appointed  by  God  directly  defeated  ('). 

2.  Refute  the  pretexts  :  which  «  may  be  well  reduced  to  two 
kinds  :  some  people  are  unwilling  to  take  upon  themselves  the  bur- 
den of  a  numerous  family  ('),  and  others  wish  to  spare  the  wife  the 


repulse,  will  break  out  into  blasphemy  against  God  and  religion, and  say  scandal- 
ous things  before  the  servants  and  children;  4/ if  there  is  reason  to  fear  quar- 
rels, disputes  and  frequent  dissensions...  ».  A''.  R.  Th.,  IX,  p.  326. 

I.  Vermebrsch,  Le  Probllmc  de  la  Natalite,  p.  50  ss.,  argues  very  well  against 
those  who  would  deny  this  teaching  of  theology. 

3.  //  they  allege  as  a  pretext  too  numerous  a  family,  or  poverty,  excite  great 
confidence  in  the  fatherly  Providence  of  God,  that  has  a  care  even  for  the  birds 
of  the  air  ;  and  bid  them  beware  lest  they  turn  the  blessing  of  Providence  into  a 
curse. 

«  Appeal  should  also  be  made  to  the  fact,  confirmed  by  daily  experience,  that 
large  families  are,  generally  speaking,  the  happiest ;  for  in  them  the  natural 


246  .  THE  USE  OF   MARRIAGE 

dangers  of  pregnancy  and  especially  of  childbirth  »  (').  Instr., 

p.  455. 

3.  Inspire  a  salutary  fear  :  by  speaking  of  the  Divine  vengeance 
that  onanists  bring  down  upon  themselves  by  this  unnatural 
vice  (*).  Incite  this  salutary  fear  especially  in  those  who,  influenc- 
ed by  their  egoism,  outrage  the  laws  of  nature  in  order  to  escape 
the  burden  of  children  ;  and  in  those  who  «  should  fear  lest  they 
may  some  time  have  to  undergo  a  harder  and  more  trying  expe- 
rience, since  excessive  fondness  for  the  children  that  they  have, 
often  makes  the  objects  of  such  ill-regulated  affection  the  instru- 
ments of  God's  vengeance,  even  in  the  present  life  »  ('). 

4.  Do  away  with  the  causes  from  which  onanism  comes,  especially 
the  materialistic  view  of  life  and  effeminacy  of  will,  by  giving 
married  people  a  higher  conception  of  marriage,  and  by  exhorting 


energies  of  their  members  find  full  scope,  and  a  more  complete  unanimity  and  a 
manly  affection  are  suppreme  ».  Instruct.,  p.  456  ;  cf.  Epistola  Pastoralis  Card. 
Mercier,  p.  430  ss.  ;  Vermeersch,  La  Peurde  I'enfant,  p,  41. 

It  is,  besides,  an  established  fact,  «  que  le  mouvement  de  la  natality  est  g6n6- 
ralement  en-raison  inverse  de  I'aisance  ».  Paquet,  1.  c,  p.  362  s. 

1.  «  In  respect  of  those  who  fear  that  another  confinement  may  prove  fatal  to 
the  wife,  it  may  be  answered,  in  general  terms,  that  some  doctors  are  too  ready 
to  say  that  there  is  danger  of  death  from  childbirth  ;  moreover,  that  obstetrics 
and  surgery  have  made  such  progress  at  the  present  day,  that  almost  all  danger 
of  death  may  be  provided  against  by  the  employment  of  proper  means  ;  that,  on 
the  other  hand,  voluntary  sterility  procured  by  the  practice  of  onanism  is  not 
without  injury  to  health  ;  that  if  after  all  there  is  real  danger,  they  must  either 
take  the  risk,  or  avoid  it  by  the  observance  of  continency.  Those  who  are  in  this 
unfortunate  position  have,  indeed,  need  of  Christian  fortitude  ;  but  in  this  way 
they  will  lay  up  for  themselves  a  weight  of  glory  by  their  acts  of  temperance, 
instead  of  preparing  for  themselves  remorse  of  conscience  and  a  debt  of 
punishment  ».  Instruct.,  p.  456.  Cf.  also  Desplats,  o.  c,  p.  45  s.,  and  compare 
with  p.  40  s.,  where  he  points  out  the  salutary  effect  that  even  repeated  preg- 
nancy produces  in  a  woman. 

2.  The  best  known  example  is  the  terrible  chastisement  of  the  human  race  by 
the  waters  of  the  flood,  in  punishment  of  the  sin  of  luxury  against  nature  («  for 
all  flesh  had  corrupted  its  way  upon  the  earth  ».  Gen.,  VI,  13) ;  the  punishment  of 
Sodom  and  Gomorrha  is  another  example. 

3.  Instruct.,  p.  456  s.  It  may  also  be  prudently  alleged  «  that  the  means  they 
employ  are  not  infallible  in  their  effect ;  whence  suspicions  of  infidelity,estrange- 
mcnt,  and  the  like  may  arise  •».  Ibid.,  p.  456  s.  It  is  also  sometimes  well  to 
appeal  to  the  evil  physiological  consequences,  of  which  we  have  spoken  above. 
Cf.  Lettre  Pastor.  Card.  Mercier,  p.  415  ss. 


THE   USE  OF  MARRIAGE  247 

them  to  the  strenuous  exercise  of  Christian  manhness  and  the 
moderate  enjoyment  of  pleasures  ('). 

5.  According  to  the  reply  of  the  S.  Penitentiaria,  16  June  1880,  it 
may  sometimes  be  cautiously  suggested  to  the  penitent  to  make 
use  of  marriage  only  tempore  ageneseos  (^) :  but  this  advice  must  not 
be  given  indiscriminately,  nor  as  a  certain  means  for  avoiding 
fecundation  ('). 

Quinimo  non  videntur  reprobandi  confessarii,  qui,  in  desperatis 
adjunctis,  per  modum  ultimi  effugii,  permittunt  conjugibus  tan- 
quam  minus  malum,  ut  copulam  exerceant  ea  lege  ut  earn  inccep- 
tam  abrumpant  ante  seminationem,  banc  cohibendo  :  supponitur 
utique  conjugibus  experientia  constare,  hujusmodi  copulationem 
pro  ipsis  non  aequivalere  pollutioni  (*). 

Quodsi,  omnibus  remediis  ac  zeli  industriis  frustra  exhaustis, 
non  succedat  confessario  poenitentem,  malitiae  conscium,  a  praxi 
onanistica  avertere,  non  remanet  nisi  ut  dimittatur  tanquam  indis- 
positus,  absolutione  denegata. 

Note.  €  Catholic  doctors  must  consider  their  grave  obligations 
in  this  matter,  and  be  careful  not  to  exaggerate  the  danger  of  par- 
turition, but  rather  point  out  to  the  fearful  how  these  dangers  may 
be  minimized  >  C*).  They  must  endeavour  by  every  means  in  their 


1.  It  is  especially  the  business  of  the  parish  priest  to  attack  this  vice,  as  oc- 
casion offers,  in  public  and  private  instructions,  as  we  shall  say  below,  in  no  334, 
when  speaking  of  the  duty  of  the  parish  priest  with  regard  to  married  persons. 

2.  The  ttmpus  ageneseos,  as  its  name  implies,  is  the  time  that  is  unsuitable  for 
fecundation,  viz.,  between  the  14th  or  15th  day  after  the  commencement  of  the 
menstrual  discharge  and  the  3rd  or  4th  day  before  the  following  one. 

3.  On  the  one  hand  it  cannot  be  denied  that  the  copula  effected  during  that 
period  is  physiologically  more  remote  from  fecundation,  since  the  menstrual 
discharge  is  as  a  rule  connected  with  ovulation.  This  is  proved  by  experience, 
according  to  the  computation  made  by  Brouardel,  o.  c,  p.  173.  On  the  other 
hand,  by  way  of  exception,  ovulation  occurs  outside  of  the  times  of  the  menstrual 
discharge,  and  may  be  provoked  by  the  act  of  coition  itself ;  the  seed  may  also 
remain  fecund  for  several  days  in  the  uterus  ;  hence  the  efficacy  of  the  remedy 
cannot  be  fully  relied  on.  Cf.  Eschbach,  o.  c,  p.  81-84  3  Capellmann,  0.  c,  p. 
138-140  ;  N.  R.  Th.  XXXI,  p.  599. 

4.  Cf.  supra,  no  127  ;  Collat.  Brug.,  t.  VII,  p.  485  s.,  and  compare  with  t.  VI, p. 
478. 

5.  Instruct.,  p.  46i.Cf.DESPLATS,o.  c,  where  with  great  skill  and  care  he  states 
the  duty  of  medical  men  in  this  matter.  Boule,  La  responsabilite  du  medecin  dans 


248  THE  CARE  OF  THE  CHILDREN 

power  to  co-operate  with  the  pubhc  authority  ('),  and  with  pri- 
vate enterprise  also  ('),  in  combating  this  pestilent  disorder,  which 
men  and  women,  and  even  medical  men  themselves,  are  not 
ashamed  to  disseminate  by  word  and  act  ('). 

Article  2.  Care  and  education  of  the  children. 

U8. 
Right  and        I.  Th6  right  that  parents  have,  and  the  obligation  that  they  are  under 

duty  of  of  educating  their  children  are  deduced  directly  from  the  nature  of  marriage 
chUdren.  and  from  the  end  proper  to  it,  which  is  no  other  than  the  work  of  gener- 
ation and  education. 

The  force  of  nature  impels  parents  to  show  love  and  solicitous  care  for 
their  offspring,  and  in  like  manner  impels  children  to  turn  to  their  parents 
as  their  natural  educators  (*). 

Now,  if  the  business  of  education  is  not  the  concern  of  the  parents,  there 
is  reason  to  fear  that  it  will  be  neglected  and  the  order  of  Providence 
subverted.  It  is  futile  to  speak  of  it  as  the  business  of  society  at  large,  for 
a  burden  imposed  upon  all  in  general  is  borne  by  no  one  in  particular ;  and 
it  is  illogical  to  look  upon  it  as  the  duty  of  the  State,  for  the  State,  as  a  civil 


la  prophylaxis  anticonuptionnelle  et  V avortement  therapcutique,  in  the  N.  R.  th., 
1911,  p.  591  ss. 

1.  Cf.  Lettre  Pastorale  du  Card.  Mercier,  p.  408,  where  are  given  the  decisions 
of  the  Tribunals  against  the  promoters  of  onanism;  cf.  also  the  decisions  of 
I  Aug.  1909  (Cour  d'Appel  de  Pau),  in  Pasicrisie,  1909,  IV,  p.  44  s.,  and  Collat. 
Brug.,  t.  XIV.,  p.  365  s. ;  likewise  the  decisions  of  the  Courts  of  Liege  and  Brus- 
sels (in  the  case  of  Dr.  Mascau),  18  Oct.  1909  and  26  Feb.  igio,  in  Pasicrisie, 
1910,  II,  p.  171  ss.  and  169  ss.  Cf.  XX^  Steele,  21  Oct.  igio,  on  the  vigorous  on- 
slaught on  pornography  made  by  the  Italian  minister  Luzzati.  See  also  Lemozin, 
1.  c,  p.  788-794,  and  Revue  prat.  d'Apolog.,  t.  XIII  (1912),  p.  125  ss.,  where  are 
given  the  various  proposals  of  a  law  against  depopulation  laid  before  the  French 
legislature,  and  of  one  already  adopted  in  the  United  States  of  America. 

2.  Cf.  Lemozin,  1.  c,  p.  785-788,  where  he  gives  a  list  of  some  association  start- 
ed by  private  enterprise  for  the  purpose  of  opposing  the  restriction  of  births. 

3.  Cf.  Knoch,  o.  c,  p.  21  ss.  ;  Lettre  Pastorale,  p.  407 ;  SuRBLED,/4M<oKf  du 
Mariage,  p.  8-12,  where  may  be  found  the  consultations  of  several  doctors  on 
this  matter.  Cf.  also  Forel,  o.  c,  p.  496  ss.,  where  he  shamelessly  sets  forth  and 
describes  the  ways  of  making  use  of  onanism  ;  likewise  Nystrom,  o.  c,  p.  269  ss. 
It  is,  however,  a  pleasure  to  refer  to  the  Medical  Congress  held  in  Paris  on  the 
7th  of  April  1910,  when  even  freethinking  doctors  vigorously  inveighed  against 
the  theory  and  practice  of  Neo-Malthusianism. 

4.  In  this  sense  the  Belgian  civil  Code,  art.  293,  declares  :  «  Les  epoux  con- 
tractent  ensemble,  par  le  fait  seul  du  mariage,  I'obligation  de  nourrir,entretenir 
et  Clever  leurs  enfants  ». 


THE   CARE   OF   THE   CHILDREN  249 

society,  presupposes  the  existence  of  a  properly  constituted  domestic 
society,  since  it  is  made  up  of  an  agglomeration  of  families  (').  Thus,  by  a 
process  of  elimination,  we  see  that  the  duty  of  education  rests  with  the 
parents. 

II.  What  education  implies. 

A.  With  regard  to  the  body  : 

1.  A  soon  as  the  child  is  conceived,  it  must  be  carefully  preserved  from    What  educ- 
injury,  and  every  efifort  made  to  provide  for  its  birth  under  healthy  condi-  ^^t^^^ard 
tions.  It  is  for  this  that  the  mother  must,  during  the  period  of  pregnancy,  to  the  body  ; 
abstain  from  such  occupations  as  are  likely  to  bring  about  abortion  or 
otherwise  injure  the  child  conceived  in  her  womb. 

2.  When  once  the  child  is  born,  it  must  be  properly  nurtured  {^)  and 
cherished  (') ;  the  parents  must  carefully  provide  for  its  physical  well-being 
according  to  their  means  and  position,  and  both  of  them  are  bound  to  do 
their  part  therein. 

3.  Moreover,  in  proportion  to  their  means,  the  father  and  mother  are 
bound  to  make  the  child  capable  of  supporting  himself  in  the  future,  either 
by  leaving  him  a  fortune,  by  having  him  taught  a  trade,  or  by  procuring 
for  him  the  necessary  instruction. 

B.  With  regard  to  the  soul : 
1 .  In  the  natural  order  : 

It  is  the  duty  of  parents  to  labour  constantly  and  with  one  accord  for  the  with  regard 
intellectual,  moral,  and  religious  education  of  the  child,  to  develop  its  intel-    ^  *"^  ^     ' 


I,  «  Granted  the  intrittsic  and  essential  end  of  the  family,  the  education  of  the 
children  is  an  immediate  and  natural  necessity,  and  it  is  illogical  to  look  upon 
the  work  of  education  as  naturally  belonging  to  a  social  institution  that  is  pos- 
terior to  the  family,  and  whose  very  existence  presupposes  that  of  normally 
constituted  families  ».  Meyer,  o.  c,  no  106. 

3.  Bened.  XIV,  De  Syn.  dioec,  t.  XL  c.  VIII,  nos  9  ss.,  declares  that  the 
mother  is  bound  to  suckle  her  own  child,  unless  there  be  some  sufficient  reason 
against  it,  more  especially  a  reason  of  health.  «  This  is  why  »,  he  says  by  way 
of  conclusion,  «  the  Bishop,  in  order  not  to  be  looked  upon  as  an  innovator, 
ought  to  refrain  from  publishing  the  precept  of  which  we  have  spoken,  but 
should  rather  earnestly  beg  ladies  of  wealth  and  position,  who  alone  are  in  the 
habit  of  entrusting  their  babies  to  wet-nurses,  to  imitate  the  example  of  the  holy 
women  who  suckled  their  own  infants,  as  Sara  suckled  Isaac,  and  the  Blessed 
Virgin  Mary,  Mother  of  God,  suckled  her  Divine  Son,  Christ  our  Lord  ».  Cf. 
Stohr,  o.  c.  p,  485. 

3.  Cf.  Greidanus,  Geneeskundig  onderzoek,  p.  27,  3  ;  who  expresses  a  wish  to 
see  a  little  book  given  to  the  newly  married,  teaching  how  to  rear  an  infant,  and 
to  avoid  all  that  may  injure  its  health,  even  before  birth. 


250  THE  CARE  OF  THE  CHILDREN 

ligence  and  to  form  its  will.  From  its  earliest  infancy  («)  it  must  receive 
from  its  father  and  mother,  both  by  word  and  example,  lessons  of  virtue 
and  morality  ;  they  must  inculcate  hatred  of  sin  and  the  fear  of  God,  and 
with  watchful  care  keep  far  from  the  child  all  that  might  sully  its  purity  of 
soul ;  they  must  provide  for  it  religious  teachers,  and  see  that  the  servants 
to  whose  care  they  entrust  it  are  honest  and  virtuous  (»). 

2.  In  the  supernatural  order : 

Christian  parents  have  to  give  their  children  an  education  fitting  them 
alike  for  their  natural  and  their  supernatural  end.  Consequently  they  must 
instruct  them  in  the  practice  of  the  Christian  virtues  and  in  the  observance 
of  the  commandments  of  the  New  Law,  under  the  direction  of  the  Church 
established  by  Christ  ;  they  must  see  that  they  duly  frequent  the  sacra- 
ments, and,  before  all,  that  they  are  baptized  without  delay  ('). 

Note.  1.  Education  is  a  common  work,  the  joint  right  and  duty  of  the 
father  and  the  mother;  nevertheless  in  this  particular  point,as  in  the  gener- 
al organization  of  the  household,  the  husband  takes  the  first  place,  and  it 
is  for  him  to  say  what  is  to  be  done. 

2.  It  may,  however,  be  asked  if  the  whole  work  of  education,  natiaral  and 
supernatural,  belongs  by  exclusive  right  to  the  parents.  On  this  point  see 
Meyer,  o.  c,  II,  n°  107  ss.  ;  Lecler,  in  the  Coll.  Namurc,  t.  IX,  p. 
152  ss. 


1.  St.  Fran'cis  de  Sales,  Introduction  a  la  vie  devote,  Annecy,  Nierat,  1893,  p. 
Ill,  ch.  38,  exhorts  parents  to  consecrate  their  child  and  offer  it  to  God  troni  the 
moment  of  its  conception.  Cf.  Coll.  Brug.,  t.  IX,  p.  191  s. 

2.  Special  prudence  and  tact  are  neccessary  in  all  that  concerns  the  sexual 
education  of  the  young.  A  number  of  modern  works,  widely  circulated,  advocate 
in  this  matter  a  course  that  is  far  too  lax  and  daring.  Such  are  the  little  volumes 
of  the  Self  and  Sex'  series,  by  Dr.  S.  Stall  and  Dr.  M.  Wood  Allen,  (with  regard 
to  them,  see  the  decision  of  the  S.  C.  of  the  Index,  in  the  Coll.  Brug.,  t.  XIII,  p. 
601  s.).  The  same  applies  to  Wilhelm,  Das  Sexuelle  Leben  und  seine  Bewertung 
in  der  Erziehung  dcr  Kinder,  Donauworth,  1906,  and  to  Leroy  Allais,  Comment 
j'ai  instruit  mes  filles,  Paris,  igo8,  etc. 

There  are,  nevertheless,  works  which,  without  being  irreproachable  in  every 
respect,  suggest  counsel  and  advice  useful  to  parents  and  teachers.  Such  are  ; 
FoNSAGRYvEs,  ConstHs  aux  parents  et  aux  maitres  sur  ^education  de  la  purete, 
Paris,  1902  ;  Foerster,  Jugendlehre,  Berlin,  1906  ;  Ernst,  Elternpflicht, 
Kevelaer,  of  which  a  Dutch  translation,  largely  rewritten,  has  appeared  imder 
the  title  of  Ouderplicht,  Venloo,  1906.  See  also  Knock,  Veducation  de  la  Chastete, 
Liege  1912  ;  Vie  diocesaine,  Documenta,  1910,  p.  56  ss. 

3.  Cf.  Our  article,  De  Baptizandis  nonnatis,  abortivis  et  monstris,  in  the  C»ll. 
Brug.  t.  VIII,  p.  493  ss.  ;  where  the  rules  of  prudence  to  be  followed  in  cases  of 
miscarriage  and  difficult  confinement  are  given  at  length. 


THE  CARE  OF  THE  CHILDREN  251 

3.  From  our  standpoint,  natural  parents  of  illegitimate  children  have 
rights  and  duties  analogous  to  those  of  married  persons,  by  reason  of  their 
position  as  father  and  mother  ;  there  is,  however,  this  difference  that  parents 
united  in  marriage  have  a  double  title  in  this  respect,  that  of  parents  and 
that  of  husband  and  wife. 

Scholion.  Provisions  of  the  civil  law. 

449. 
As  to  the  rights  and  duties  of  parents  to'wards  their  children,  both  Provisions  of 

legitimate  and  natural,  the  Code  Napoleon,  1.  I,  tit.  g,  De  la  puissance  ^«^  "»"*««" 
paternelle,  determines  rather  the  rights  of  fathers  and  mothers  than  their 
obligations  ;  but  we  may  remark  that  these  rights  are  accorded  to  parents 
not  in  their  own  interests,  but  in  those  of  their  children,  so  that  the  juris- 
prudence looks  upon  these  rights  as  actual  duties.  The  following  are  the 
provisions  of  the  Code  Napoleon,  in  conjunction  with  those  of  the  Belgian 
law  of  the  6  April  igo8  : 

A. Legitimate  (or  legitimated)  children  are  by  full  right  members  of  their    as  regards 
parents'  family,  and  are  related  to  the  kindred  of  their  father  and  mother  ;     ^^'^"»*'^ 
they  have  a  right  to  be  supported,  cared  for,  and  educated  by  their  parents, 
that  is  to  say,  to  receive  from  them  their  physical  and  moral  education  (1), 
and  they  are  their  heirs  (*),  as  well  as  the  heirs  of  the  relations  of  their 
parents,  within  the  prescribed  limits. 

B.  Illegitimate  children  (3). 

Preliminary  observations,   l.  Simply  natural  children  a/  can  obtain  and  illegiti- 

acknowledgment  by  their  parents  or  by  one  of  them,  either  by  the  spon-        ???'^ 

.......  chtlufcn. 

taneous  act  of  the  father  or  mother  (*)  or  by  a  judicial  decision  (»)  given  at 

the  petition    of  the  child  or  of  its  representatives,  declaring  that  such 

a  person  is  the  father  or  mother  of  the  child  :  this  petition  can  only  be  made 

in  the  cases,  and  under  the  conditions  named  in  the  law  (c).  b/  Where  they 


1.  They  have,  at  any  age,  the  right  to  obtain  support  from  their  parents,  if  in 
need  of  it. 

2.  There  is  even  one  part  of  the  inheritance  which  parents  have  no  power  to 
will  away  from  their  children. 

3.  We  shall  point  out  below,  no  170,  what  is  meant  by  legitimate,  illegitimate, 
simply  natural,  and  adulterine,  as  applied  to  children. 

4.  Art.  334  :  «  La  reconnaissance  d'un  enfant  naturel  sera  faite  par  un  acte 
authentique,  lorsqu'clle  ne  I'aura  pas  ete  dans  son  acte  de  naissance  ».  Observe 
that  such  acknowledgment  may  be  opposed  (a.  339),  and  that  it  profits  the  child 
only  in  respect  of  the  person  who  has  acknowledged  him  (a.  336). 

5.*  Lejugement  qui  declare  la  filiation  naturelle  produit  les  memes  effets 
que  la  reconnaissance  ».  Art  341c. 

6.  As  T egards  paternity :  in  virtue  of  the  law  of  1908,  art.  310a  :  c  La  recherche 
de  la  paternite  est  admise...  1/  s'il  y  a  possession  d'etat  d'un  enfant  naturel  dans 


252  THE  CARE  OF  THE  CHILDREN 

have  not  been  spontaneously  acknowledged,  and  where  judicial  acknow- 
ledgment is  not  possible  for  them  under  the  terms  of  the  law,  natural 
children,  if  they  are  not  in  a  position  to  claim  the  title  and  rights  of 
filiation,  may  yet  establish  a  presumption  of  natural  paternity,  enabling 
them  to  claim  an  allowance  for  their  maintenance  and  education  until  the 
completion  of  their  eighteenth  year,  from  the  man  who  had  relations  with 
the  mother  (i)  during  the  legal  period  of  conception  »,i.  e.,  between  the 
300^''  and  the  180*^  day  before  the  birth,  provided  that  the  proof  of  these 
relations  follows  from  one  of  the  circumstances  required  by  the  law  (*). 

2.  Adulterine  and  incestuous  children  cannot  be  legally  acknowledged 
either  by  the  spontaneous  act  of  the  parents  (art.  335),  or  by  a  judicial 
decision  ;  for  all  legal  proceedings  are  denied  to  them  for  this  purpose  (art. 
342a) ;  neither  can  they  claim  the  allowance  for  maintenance  provided  for 
by  the  law  of  1908  (same  art.)  (-). 


les  conditions  prevues  par  I'art.  331  ;  2/  si,  pendant  la  periode  legale  de  la 
conception  il  y  a  eu  enlevement  par  violence,  ruse  ou  menace,  detention, 
sequestration  arbitraire  ou  viol  >. 

As  to  maternity  :  «  La  recherche  de  la  maternity  est  admise  1/  s'il  y  a  posses- 
sion d'etat  dans  les  conditions  prevues  par  I'a.  3JI ;  2/  si  raccouchement  de  la 
mere  pr^tendue  et  I'identite  du  reclamant  avec  I'enfant  dont  elle  s'est  accouch^e 
sont  rendus  vraisemblables  par  un  commencement  de  preuve  par  ecrit  conforme 
aux  dispositions  de  I'art.  324,  ou  par  I'^nonciation  de  I'acte  de  naissance  ».  Art. 
341a.  For  the  inquiry  into  paternity  and  its  relations  with  the  new  Belgian  law 
of  1908,  see  Leclercq,  o.  c.  ;  Claeys  Bouuaert,  o.c.  ;  Planiol,  o.  c,  I,  no  1520 
ss. ;  Rev.  cath.  du  droit  1908-1909,  p.  277  ss.  ;  Pasicrisie,  1910,  III,  p.  379  s.,  and 
compare  with  Gigot,  La  Seduction  et  la  Recherche  de  la  Paternite,  in  the  Reforme 
sociale,  t.  43  (1903),  p.  189  ss. 

1.  It  is  accordingly  necessary  that  the  filiation  should  first  be  established  on 
the  mother's  side. 

2.  Law  of  6  April  1908,  art.  340b,  where  the  tollowing  clause  is  added  ;  «  La 
preuve  de  ces  relations  ne  peut  resulter  que  de  I'une  des  circonstances  suivan- 
tes  :  1/  de  leur  aveu  dans  les  actes  ou  les  Merits  dman^s  du  d^fendeur  ;  2/  de  leur 
caractere  habituel  et  notoire  ;  3/  de  I'attentat  k  la  pudeur,  consomm^  sans 
violence  sur  la  personne  d'une  fiUe  de  moins  de  16  ans  accomplis  ;  4/  de  la 
seduction  de  la  mere  par  promesse  de  mariage,  manoeuvres  frauduleuses  ou 
abus  d'autorite  ». 

3.  By  art.  335  :  <  La  reconnaissance  ne  peut  avoir  lieu  au  profit  des  enfants  nes 
d'un  commerce  incestueux  ou  adulterin  ».  By  art.  342a  :  «  dans  les  cas  oij,  d'apres 
I'art.  335,  la  reconnaissance  ne  peut  avoir  lieu,  I'enfant  ne  sera  jamais  admis  soit 
a  la  recherche  de  la  paternite  ou  de  la  matemite,soit  a  la  reclamation  d'aliments 
prevue  jl  i'art.  340b  ».  Finally  art.  343b  adds:  «  les  prohibitions  des  articles... 
335  and  343a  ne  concernent  pas  les  enfants  n6s  de  personnes  parentes  ou  alliees, 
entre  lesquelles  le  mariage  pouvait  etre  autorise  par  dispense  ». 


THE  CARE  OF  THE   CHILDREN  253 

This  prohibition  of  legal  acknowledgment  must  be  understood  in  the 
following  sense  :  children  conceived  in  adultery  or  incest  cannot  be  volun- 
tarily acknowledged  by  their  parents  or  by  one  of  them,  nor  can  they  apply 
for  a  declaration  of  filiation  whenever  such  acknowledgment  or  declaration 
would  involve  the  manifestation  of  an  adulterine  or  incestuous  filiation  (•)  ; 
but  it  may  happen  in  very  rare  cases,  that,  apart  from  any  petition  for 
acknowledgment  made  by  the  child,  adulterine  or  incestuous  filiation  may 
be  estabUshed  as  the  consequence  of  a  judicial  decision,  e.  g.,  «  where  a 
marriage  is  annulled  on  account  of  incest  or  bigamy  »,  and  also  in  the 
case  «  in  w-hich  an  action  for  disownment  is  brought  by  the  husband  : 
if  the  judge  decides  that  the  child  bom  of  a  married  woman  has  not  her 
husband  for  its  father,  the  decision  establishes  an  adulterine  filiation  ». 
Cremieu,  o.  c,  p.  178.  Cf.  Claeys-Bouuaert,  o.  c,  p.  282  s.,  as  well  as 
the  decision  of  the  Tribunal  of  Verviers,  of  23  Feb.  1910,  (in  the  Pasicrisie, 
1910,  III,  p.  265  s.). 

After  these  preliminary  observations  it  will  be  easier  to  understand  the 
provisions  of  the  law  with  regard  to  natural  or  illegitimate  children. 

1.  Simply  natural  children: 

a/  For  acknowledged  natural  children  :  the  acknowledgment,  whether 
voluntary  or  judicial,  establishes  relationship  only  between  the  child 
acknowledged  and  the  father  and  mother  who  have  acknowledged  it,  and 
not  between  it  and  the  relations  of  the  latter,  saving  what  is  said  in  articles 
161  and  162  of  the  Civil  Code  as  to  the  prohibitions  of  marriage,  and  the 
provision  of  art. 766  of  tlie  same  Code  concerning  the  succession  of  a  natural 
child.  Natural  children  are  not  even  the  heirs  of  their  parents  (art.  756  of 
the  Code),  they  are  only  irregular  successors,  within  the  limits  fixed  by 
the  law,  in  such  a  way  that,  in  the  terms  of  art.  908  of  the  Civil  Code,  they 
cannot  receive  from  their  parents,  by  gift  during  their  lifetime  or  by  will, 
anything  beyond  that  which  is  accorded  to  them  by  law  (art.  756  ss.). 

On  the  other  hand  they  are  subject  to  paternal  authority,  and  have 
towards  their  father  and  mother  who  have  acknowledged  them,  the  same 
obligations  and  duties  as  legitimate  children  (*). 

b/  Those  children  to  whom  an  alimentary  allowance  has  been  granted  by 


1.  Filiation  may  be  acknowledged  or  declared  in  respect  of  the  father  or 
mother,  so  far  as  such  acknowledgment  or  declaration  does  not  involve  an  adul- 
terine or  incestuous  filiation. 

2.  Cf.  Cremieu,  o.  c,  p.  81  ss. ;  but  compare  this  with  Leclercq,  o.  c,  p. 
xxviii  s  ;  and  art.  337,  modified  by  the  law  of  1908.  In  the  new  German  Code, 
«  an  illegitimate  child  and  his  father  are  not  reputed  kin  »,  art.  1589  ;  on  the 
other  hand  «  in  its  relationship  to  the  mother  and  the  mother's  relations  it  has 
the  same  legal  position  as  a  legitimate  child  »,  art  1705. 


254  'THE  CARE  OF  THE  CHILDREN 

the  judge,  in  virtue  of  art.  340b,  have  a  right  to  «  an  annual  alloM^ance  for 
their  support  and  education  until  they  are  fully  18  years  of  age  >  ;  beyond 
this  alimentary  allowance,  they  may  in  conformity  with  the  common  law 
receive  free  gifts  from  their  parents  ;  in  other  words,  they  are  not  incapaci- 
tated by  art.  908  of  the  Civil  Code. 

On  the  other  hand,  they  are  not  considered  in  the  eyes  of  the  law  as  the 
children  of  him  who  has  to  pay  their  allowance,  except  as  concerns  the  pro- 
hibitions of  marriage,  in  the  terms  of  articles  161  and  162  of  the  Civil 
Code. 

c/  Outside  these  two  classes,  natural  children  are  considered  in  civil  law 
as  strangers  in  respect  of  their  parents,  if  they  so  much  as  know  the  au- 
thors of  their  being  ;  and  they  have  no  legal  right  to  demand  of  them  what- 
ever it  may  be  (').  Naturally,  like  all  strangers,  they  can  profit  by  the  provi- 
sions of  the  common  law,  and  receive  gifts  or  legacies  from  their  parents. 
The  provision  of  art.  908  does  not  affect  them,  and  the  prohibitions  of  mar- 
riage in  art.  161  and  162  are  not  applicable  to  them. 

2.  Children  whose  adulterine  or  incestuous  filiation  happens  to  have  been 
legally  established,  may  demand  support  from  their  parents  in  virtue  of 
art.  762  ;  but  considering  the  provisions  of  art.  908,  applicable  in  the  case, 
they  cannot  receive  anything  beyond,  not  even  by  way  of  gift  ;  in  detesta- 
tion of  adultery  and  incest  they  are  thus  put  outside  the  common  law  (*) ; 
they  are  nevertheless  affected  by  the  marriage  prohibitions  of  articles  161 
and  162  of  the  Civil  Code.  Cf.  Cr^mieu,  o.  c,  p.  178  s. 

Note.  It  foUoAvs  from  what  we  have  just  said  that  only  natural  child- 
ren legally  acknowledged  are  looked  upon  by  the  civil  law  as  sharing  in  a 
full  and  entire  filiation,  and  in  all  its  legal  effects  with  respect  to  their 
parents  ;  legal  acknowledgment  alone  is  admitted  as  proof  of  full  filiation. 

Nevertheless,  in  the  case  of  art.  340b,  it  appears,  as  we  have  insinuated 
above,  that  the  right  of  demanding  an  alimentary  allowance,  where  the 
judge  allows  this  right  to  a  natural  child,  is  based  on  a  presumption  offilia- 


I  Observe  that  such  children  are  not  considered  as  the  natural  children  of  any 
one,  notwithstanding  the  entries  in  the  register  of  births.  For,  as  it  is  said  in  the 
Pasicrisie,  1910,  III,  p.  343,  «  natural  filiation  exists  only  when  established  by 
acknowledgment.  The  registration  of  the  birth  of  a  natural  child  proves  nothing 
beyond  the  birth  of  the  child  ;  it  does  not  prove  its  filiation  ».  Art.  319  of  the 
Code  applies  only  to  legitimate  children. 

2.  It  follows  from  the  preliminary  observations  in  no  2,  that  these  exceptional 
measures  are  of  very  rare  application,  for  it  is  very  seldom  that  adulterine  or 
incestuous  filiation,  as  such,  is  legally  proved  ;  in  fact  all  children  born  of  adul- 
tery or  incest,  but  who  are  not  legally  acknowledged  as  such,  are  treated  as  sim- 
ply natural  children,  according  to  the  rules  given  under  x. 


THE   COHABITATION  255 

tion  and  paternity,  in  virtue  of  which,  however,  the  child  profits  only  by  a 
partial  legal  effect.  The  payment  of  this  allowance  is  not  imposed  by  way  of 
a  punishment  and  penalty  for  the  act  of  one  who  exposes  himself  to  the  risk 
of  incurring  paternity,  as  some  pretend  (theorie  dti  risque-paternite) ,  but 
rather  in  consequence  of  a  presumption  of  really  existing  paternity.  This  is 
what  justifiies  the  provision  of  art.  340c  :  «  lejugement  qui  condamne  le 
defendeur  au  paiement  d'aliments,  en  vertu  de  I'art.  340b,  produit  les 
memes  effets  que  la  reconnaissance,  en  ce  qui  concerne  les  empechements 
de  mariage  ».  Cf.  Leclercq  o.  c,  p.  VI,  XXXI  ss.,  and  XLV  s.  ; 
Claeys-Bouuaert,  o.  c,  p.  476  s. 

Article  3.  Cohabitation. 

Conjugal  cohabitation  implies  community  of  roof  ('consortium 
tecti),  that  is  to  say,  community  of  table  and  of  family  life  under 
the  same  roof,  and  this  is  cohabitation  strictly  so  called.  In  addi- 
tion to  this  it  also  includes  community  of  bedchamber  or  of  bed  (con- 
sortium tori). 

Paragraph  I.  RIGHT  AND  OBLIGATION  TO  COHABITATION. 

I.  Community  of  roof. 

ISO, 
The  conjugal  bond  implies  of  its  nature  and  as  a  general  rule  the    Right'and 

right  and  mutual  obligation  to  community  of  family  life  under  the    ''^%«''^ 

same  roof.  This  flows  directly  from  the  right  and  obligation  that 

parents  have  with  regard  to  the  education  ot  their  children.  As  we  ^oiocommu' 

have  said  above,  this  moral  and  religious  as  well  as  physical  educ-  '*''■>'  ^f  ^oof , 

ation  requires  the  common  constant  care  and  exertion  of   the 

father  and  mother.  To  conduct  it  properly,  it  is  clear  that  it  is  not 

sufficient  for  the  parents  to  be  united  by  a  social  bond,  if  on  the 

other  hand  they  are  living  apart.  It  is  necessary  that  they  should 

have  a  common  life  and  the  lasting  intimacy  that  springs  from 

their  relations  with  one  another  ;  the  work  of  education  brings 

with  it  many  anxieties,  in  which  they  need  mutual  assistance, 

comfort  and  support. 

We  have  said  that  the  conjugal  bond  implies  this  community 

of  life  of  its  nature  and  as  a  general  rule.  For,  accidentally  it  may 

happen  that  the  education  is  properly  assured,  even  though  the 

parents  live  apart  ;  but  in  accordance  with  the  principle  that  we 

have  invoked  above,  in  a  matter  of  obhgation  it  is  necessary  to 


256  THE  COHABITATION 

consider  things  as  they  ordinarily  are,  and  not  exceptional  cases 
that  may  accidentally  occur. 

In  addition  to  this,  their  natural  inclination  leads  husband  and 
wife  to  live  together  ;  and  they  have  constant  need  of  one  another 
in  their  daily  hfe. 

It  is  in  this  sense  that  we  ought  to  interpret  the  words  of  Gen. 
II,  24  ;  «  Wherefore  a  man  shall  leave  father  and  mother,  and 
shall  cleave  to  his  wife  ». 

The  Code  Napoleon  also  recognises  and  enforces  this  cohabitation  of 
married  people,  art.  214  :  c  La  femme  est  obligee  d'habiter  avec  le  mari  et 
de  le  suivre  partout  oii  il  juge  a  propos  de  resider  »  ('). 

Note.  It  is  true  that  the  right  and  obligation  of  husband  and 
wife  are  mutual  in  this  matter  ;  nevertheless,  it  belongs  to  the 
husband  to  choose  the  domicile,  so  that,  as  a  general  rule,  the  wife 
is  bound  to  follow  him. 

We  say :  as  a  general  rule,  because  it  may  happen  that  she  is  not 
obliged  to  do  so  ;  e.  g.,  a/  if  the  husband,  without  her  previous 
consent,  makes  up  his  mind  to  lead  a  wandering  life  ;  b/  if  the 
journey  would  cause  his  wife  serious  injury  ;  c/  if  the  husband, 
without  necessity,  determines  to  go  away  to  a  very  distant 
country  (*). 

II.  Community  of  bedchamber  and  of  bed. 
151. 

Soto  commu-  In  the  strict  sense,  the  consortium  tori,  as  it  is  called,  is  under- 
stood of  community  of  bed,  and  this  is  the  general  usage  ;  in  a  wider 
sense  it  signifies  community  of  bedchamber  with  separate  beds. 


1.  On  the  practical  way  of  compelling  the  wife  to  do  so,  see  Pasicrisie,  1907, 
IV,  p.  53  s.,  where  the  case  of  a  husband  who  demanded  that  this  wife  should  be 
brought  back  to  the  conjugal  domicile  by  military  force,  is  decided.  Cf.  also 
Planiol,  o.c,  I,  no  894 ;  Thiry,  o.  c,  no  337  ;  Pasicrisie,  1910,  III,  p.  268  s.,  where 
may  be  found  the  decision  of  the  Tribunal  of  Verviers,  of  12  Jan.  1910,  deciding 
that  recourse  cannot  be  had  to  personal  constraint. 

2.  The  Code  Napoleon,  art.  314,  quoted  above,  decrees  that  the  wife  is  bound 
to  follow  her  husband,  «  partout  oia  il  juge  k  propos  de  resider  ».  It  would  seem 
that  this  provision  must  be  interpreted  as  meaning  that  the  wife  is  bound  to 
accompany  her  husband  even  abroad,  of  course,  under  certain  conditions,  and 
among  others  this  (according  to  the  second  part  of  art.  214),  that  the  husband, 
wherever  he  goes,  must  provide  for  his  wife  «  tout  ce  qui  est  n^cessaire  pour 
les  besoins  de  la  vie,  selon  ses  facultes  et  son  etat  ».  Cf.  also  Roquin,  o.  c„  n" 
138. 


THE   COHABITATION  257 

This  community,  when  taken  in  the  strict  sense,  constitutes 
neither  a  right  nor  an  obligation  ;  it  does  so  only  when  taken  in 
the  wider  sense.  For,this  obligation  is  based  on  the  marriage  debt, 
which  cannot  be  refused  whenever  one  of  the  parties  lawfully 
demands  it  in  accordance  with  the  principles  laid  down  above ; 
but  this  conjugal  duty  can  be  perfectly  fulfilled  without  a  con- 
tinuous community  of  bed,  provided  there  is  habitual  community 
of  bedchamber  (*). 

Moreover,  doctors  disapprove  of  the  practice  of  husband  and 
wife  sleeping  together  in  the  same  bed,  as  being  too  stimulating, 
and  injurious  to  health  ('). 

Note.  1.  The  right  to  cohabitation  by  day  and  night,  of  which  we  have 
just  spoken,  is  not  at  the  base  of  the  conjugal  bond,  but  is  rather  the  coping 
of  it.  Cf.  Gasparri,  o.  c,  n°s859,  1074,  in  opposition  to  certain  authors. 

2.  Community  of  table  and  of  family  life,  as  well  as  the  common  care  of 
the  children,  necessarily  suppose  a  certain  community  of  temporal  goods. 
At  the  present  day  {')  it  is  the  civil  law  (')  that  regulates  this  matter  ;  and 
its  provisions  are  binding  so  long  as  they  are  not  opposed  to  justice  and  the 
natural  law. 

3.  Before  continuing  our  considerations,  let  us  say  a  word  as  to  the  logi- 
cal sequence  of  our  statement,  so  that  we  may  not  appear  to  go  round  in  a 
vicious  circle.  Above,  n°  130,  in  order  to  demonstrate  the  radical  right  of 
husband  and  wife  to  frequent  relations,  we  appealed  to  the  obligation  they 
are  under  of  living  under  the  same  roof  and  of  sharing  the  same  table,  but 
without  speaking  of  community  of  the  same  bedchamber  or  bed.  The  oblig- 
ation that  we  then  invoked  we  have  now  proved  ;  without  it  the  very  end 
and  object  of  marriage  would  not  be  attained.  As  to  community  of  bed- 
chamber, we  deduce  the  obligation  of  it  from  the  right  that  husband  and 
wife  have  to  conjugal  relations. 


1.  Even,  according  to  Gasparri,  o.  c,  no  1077,  <  community  of  bedchamber, 
formally  speaking,  seems  still  to  exist,  where  husband  and  wife  occupy  distinct, 
but  contiguous  rooms,  with  free  access  on  either  side.  This  practice  is  less  praise- 
worthy, but  exists  in  many  families  ». 

2.  SuRBLED,  La  morale,  I,  p.  177  ss.. 

3.  Formerly  the  canon  law  also  made  various  provisions  on  this  subject,  as  in 
1.  IV  Deer.,  tit.  20,  De  Don:itionibus  inter  virum  et  uxorem. 

4.  In  the  Code  Napoleon,  1.  Ill,  tit.  V  :  Du  contrat  dc  mariagc  et  des  droits  reS' 
pecti/s  des  epoux. 


258  THE  COHABITATION 

Paragraph  II.  CORPORAL  SEPARATION. 

I.  Separation  as  to  community  of  roof  or  cohabitation. 

A.  Teaching  of  the  Church  with  regard  to  separation. 
A.  Separation     The  Church  teaches  1.   that  separation  or  divorce  as  to  com- 
"nity  ofroof'  'w^^^^V  of  habitation  (*)  (or  as  to  board  or  mutual  service)  is  possible 
.  between  married  persons  without  breaking  the  marriage  bond  ; 

the  Church,   2.  that  such  separation  is  lawful /or  various  causes. 

These  two  points  are  confirmed  by  the  Council  of  Trent,  Sess. 
XXIV,  can.  8  (*),in  opposition  to  the  Protestants,  who,  on  the  one 
hand,  admit  only  the  absolute  dissolution  of  the  conjugal  bond, 
and  look  upon  corporal  separation,  taken  exclusively,  as  an  immo- 
ral innovation  ;  while  on  the  other  hand,  they  accuse  the  Church 
of  transgressing  the  rule  laid  down  in  Matth.,  V,  32,  and  XIX,  9, 
by  permitting  the  separation  of  husband  and  wife  for  other  causes 
than  fornication. 
as  to  the         As  regards  iht  first  point,  we  shall  show  later  that  the  conjugal 
^uchsebar-   ^^nd,  produced  by  a  marriage  ratum  et  consuvimatum,  is  absolutely 
ation.       indissoluble,  and  that  consequently  in  this  case  there  cannot  be 
any  other  than  corporal  separation.   Perrone,  o.  c,  III,  p.  398 
ss.,  entirely  refutes  the  charge  of  novelty,  and  to  him  we  refer  the 
reader. 

Moreover,  the  practice  of  the  Church,  far  from  being  contrar}' 
to  morality,  is  the  only  really  moral  solution  possible  ;  for,  it  alone 
keeps  intact  the  principle  of  indissolubility,  a  principle  essential 
for  the  safeguarding  of  morality  and  social  welfare,  as  we  shall 
see  more  clearly  in  the  sequel  (see  n°  180  and  the  following).  Cer- 
tainly, it  is  not  an  easy  thing  for  a   separated  party  to  observe 

1.  Divorce  dissolving  the  nuptial  contract  itself  is  called  divorce  quoad  vincu- 
lum. Peter  Lombard,  1.  IV,  Dist.  XXXI,  B,  calls  it  sacramental  separation,  in 
opposition  to  divorce  quoad  torum  et  cohabitationem,  which  he  calls  corporal  se- 
paration. 

2.  «  Si  quis  dixerit  Ecclesiam  errare,  quum  ob  multas  causas  separationem 
inter  conjuges,  quoad  torum  seu  cohabitationem,  ad  certum  incertumve  tem- 
pus,  fieri  posse  decernit,  A.  S.  ».  Cf.  Theiner,  o.  c.,I,  p.  313  ss.,  where  he 
quotes  the  discussions  held  in  the  Council  about  that  matter  and  the  tenor 
of  the  successively  reformed  canon  (pp.  335,  387  and  425) ;  in  the  first  wording 
(p.  313)  canon  Vlll  included  also  that  canon  which  is  now  indicated  as  the  6'h. 
See  also  Esmein,  o.  c,  II,  p.  308  ss, 


THB  COHABITATION  259 

continency  ;  but,  if  hands  are  laid  on  the  principle  of  indissolubi- 
lity, the  act  results  in  evils  yet  more  disastrous  to  society  (').  Be- 
sides, many  other  circumstances  inevitably  arise  in  which  married 
people  are  bound  to  observe  continency,  either  temporary  or 
perpetual,  e.  g.,  in  case  of  illness  or  insanity  of  one  of  the  par- 
ties, etc. 

With  regard  to  the  second  point,  besides  the  sin  of  fornication,  and  its 
the  Church  does,  indeed,  admit  other  causes  of  separation,  such 
as  the  desire  of  a  more  perfect  life,  heresy  and  provocation  to  sin  ; 
but  such  toleration  is  nowise  opposed  to  the  teaching  of  the  Gos- 
pel. St.  Matthew,  in  the  passages  referred  to  above,  speaks  of  the 
repudiation  of  a  wife  for  a  fault,  and  does  not  concern  himself  at 
all  with  the  question  of  a  motive  of  perfection  justifying  a  corpo- 
ral separation.  That  question  is  dealt  with  elsewhere,  Matth., 
XIX,  29,  where  we  read  «  Every  one  that  hath  left  ..  or  wife...  for 
my  name's  sake,  shall  receive  an  hundred  fold,  and  shall  possess 
life  everlasting  ».But  in  the  previous  passage,the  Evangelist  is  con- 
cerned with  the  fault  of  the  wife,  and  speaks  only  01  fornication, 
because  that  alone  is,  of  its  nature,  a  cause  for  perpetual  separa- 
tion, and  a  cause  peculiar  to  (*)  and  intrinsic  (*)  to  marriage. 
There  are  even  some  authors,  as  we  shall  see  in  n°  199,  who  pro- 
pose a  more  radical  solution  of  the  difficulty  drawn  from  St.  Mat- 
thew. They  claim,  and  not  without  reason,  that  in  the  text  of  St. 
Matthew  there  is  no  question  of  corporal  separation,  but  solely  of 
dissolution  of  the  bond. 


I.  «Le  fait  est  incontestable,  le  veuvage  perp6tuel  qu'entraine  la  separation  de 
corps  peut  etre  penible.  Mais  a  cette  consideration  on  a  r^pondu  :  La  legislation 
dans  sa  marche  impitoyable  rencontre  bien  des  situations  individuelles  dignes 
d'interet  et  de  sympathie  ;  elle  passe,  et  en  passant  elle  broie,  elle  6crase  ;  elle 
repr^sente  Tint^ret  de  tous,  et  il  y  a  des  miseres  auxquelles  elle  no  peut  donner 
que  sa  compassion  ».  Allegre,  o.  c,  t.  i,  p.  176.  See  also  below,  nos  i8o  and 
181. 

3.  The  other  causes  of  separation  are  common  to  all  communities  and  socie- 
ties ;  thus  the  danger  of  perversion  obliges  one  to  break  with  any  society  what- 
ever. 

3.  «  For,  by  it  (fornication)  the  advantage  01  marriage  itself,  which  consists  in 
fidelity,  is  directly  prevented  and  utterly  destroyed,  hence  an  adulteress  is  de- 
servedly put  away,  according  to  the  saying  :  *  there  is  no  need  to  keep  faith  with 
one  who  breaks  faith  '.  The  other  causes  of  separation  are  extrinsic  to  marriage  », 
Perrone,  1,  c. 


26o  THE   COHABITATION 

Moreover,  we  may  retort  against  Protestants  their  own  prac- 
tice. In  the  first  place  their  canonical  regulations  permit  a)  simple 
corporal  separation,  in  conformity  with  the  rule  laid  down  by 
Luther,  but  subsequently  revoked,  which  forbids  the  re-marriage 
of  the  guilty  during  the  lifetime  of  the  innocent  party  (')  ;  b)  they 
admit  several  causes  of  divorce  in  addition  to  adultery,  particu- 
larly mahcious  desertion  of  the  conjugal  roof  by  one  of  the  parties, 
by  extending  the  Casus  Apostoli  to  the  marriages  of  Christians 
themselves  (*)  ;  and  yet  other  causes. 

153.  B.  Causes  justifying  separation. 

Causes  of 
separation :        1 .  Adultery. 

al  adultery,  a./ Adultery  is  a  cause  of  separation.  This  is  the  teaching  oi 
the  Church  :  cap.  4  and  5,  X,  IV,  ig.  The  natural  law,  in  like 
manner,  favours  it,  since  adultery  is  directly  opposed  to  conjugal 
fidelity.  We  are  speaking  here  of  adulterous  relations  that  are  of 
their  nature  fitted  for  generation  ;  and  we  must  put  in  the  same 
class  with  these, consummated  sins  of  sodomy  (with  a  third  person) 
and  bestiality.  The  three  cases,  in  fact,  equally  violate  conjugal 
fidelity,  since  in  each  of  them  there  is  complete  coition  with  a 
third  party.  The  same  cannot  be  said  of  sodomitic  relations 
between  husband  and  wife,  even  when  accompanied  by  violence, 
b/  The  act  of  adultery  must  be  aj  formal,  that  is  to  say,  perpetrat- 
ed with  knowledge  of  the  fact.  Simply  material  adultery  does  not 
suffice,  as  for  example  the  act  of  a  man  in  error,  who  believes 
the  woman  he  is  with  to  be  his  own  wife  ;  neither  does  adultery 
effected  by  violence,  e.  g.,  in  the  case  of  a  married  woman  who  is 
forced,  suffice.  The  adultery  must  be  formal  because  separation 
is  penalty,  and  consequently  presupposes  guilt,  p/  There 
must  be  no  countervailing  act  of  adultery  on  the  other  side;  for 
then  the  wrong  done  by  each  party  to  the   other  is   obliterated 


1.  Cf.  RoEDENBECK,  o.  c,  p,  115-137,  and  compare  with  what  we  say  later, 
under  n°  302a.  The  same  author,  page  71  s.,  observes  that  certain  Protestant 
canons  seem  to  advise  the  innocent  party  to  be  content  with  corporal  separation, 
and  not  marry  again.Moreover,  the  Anglican  Church  admits  the  corporal  separ- 
ation, as  one  can  see  in  Watkins,  o.  c,  p.  427  ss. 

2.  RoEDENBECK,  o.  c,  p.  73  s.  ;  Compare  again  with  no  202a. 

3.  Ibidem,  p.  112-115 ;  Vering,  o.  c,  par.  263,  p.  943  s. ;  see  once  more  n* 
ao2a. 


THE  COHABITATION  261 

by  their  respective  misconduct.  This  condition,  readily  under- 
stood, is  laid  down  in  the  canon  law,  cap.  4,  X,  IV,  ig,  and  cap. 
7,  X,  V,  16.  The  same  observation  applies  to  the  case  in  which  the 
uncompromised  party  has  driven  the  other  to  adultery  ;  cf.  cap. 
6,  X,  IV,  13.  If  the  fault  is  really  only  on  one  side,  it  is  further 
necessary  :  t/  that  it  should  not  have  been  condoned,  because  the 
party  who  condones,  cither  in  express  words  or  tacitly,  is  held 
to  have  renounced  his  right  to  separation  ;  voluntary  admission 
of  the  guilty  party  to  conjugal  relations  on  the  part  of  the  inno- 
cent party,  duly  cognizant  of  the  fault  committed,  constitutes 
tacit  condonation. 

2.  Apostasy  or  heresy,  subsequent  to  marriage  ('). 

This  cause  of  separation  was  inserted  in  the  canon  law  (cap.  6,  bj  apostasy  or 
X,  IV,  ig),  partly  on  account  of  its  analogy  with  the  sin  of  adul-  ^''^^J'. 
tery,  since  the  embracing  of  heresy  is  looked  upon  as  an  act  of 
spiritual  fornication  (^),  and  partly  also  because  of  its  resemblance 
to  the  Casus  Apostoli,  in  which  the  converted  party  is  permitted  to 
forsake  the  infidel  party,  and  even,  in  certain  cases  to  contract 
a  fresh  marriage.  Cf.  cap.  7,  X,  IV,  ig. 

3.  The  case  of  grave  danger  to  soul  or  body. 

There  is  danger  to  the  soul,  when  one  of  the  parties  compels  the  c/  ^rave  dan- 
other  to  sin,  and  effectual  resistance  is  out  of  the  question  while '^'"  ^^J^^  ^ 
remaining  under  the  same  roof  (such  a  case  would  be  that  of  a 
wife  whose  husband  cannot  in  any  way  be  induced  to  give  up  the 
onanistic  use  of  the  condom)  (^)  ;  in  hke  manner  this  danger 
exists,  where  impotence  supervenes  on  marriage,  and  brings  with 
it  the  proximate  danger  of  incontinency  which  could  not  be  avoid- 
ed merely  by  the  occupation  of  a  separate  room.  This  cause  is  a 
legitimate  one,  since  Christ  himself  urges  Christians  to  give  up 
ever}'thing  that  is  a  scandal  to  them,  even,  if  necessary,  to  the 


I.  There  is  no  need  to  say  that  the  partner's  heterodoxy,  whether  infidelity  or 
heresy,  if  anterior  to  the  marriage  and  known  to  the  other  partner,  does  not 
constitute  a  cause  of  separation. 

3.  Hermas,  Mandatum,  IV,  cap.  I,  v.  9  (in  Funk,  Patres  Apostolici,  I,  p.  395), 
puts  apostasy  on  the  same  footing  as  adultery,  and  permits  separation  as  well 
for  the  former  as  for  the  latter.  He  says  ;  «  the  man  who  defiles  the  flesh  is  not 
the  only  adulterer,  but  whoever  acts  as  the  pagans  do  is  an  adulterer  ». 

3.  Cf.  Collat.  Brug.,  XVI,  p.  703  s. 


262  THE   COHABITATION 

plucking  out  of  an  eye,  or  the  cutting  off  of  a  hand.  Cf.  also  c.  i, 
C.  XXVIII,  qu.  I. 

There  is  danger,  and  grave  danger,  to  the  body,  in  the  case  of 
cruelty,  serious  threats  to  kill,  or  contagious  disease.  In  this  last 
case,  however,  if  the  occupation  of  a  separate  room  affords  suffi- 
cient protection,  one  cannot  proceed  to  separation.   On  a  like 
footing  with  bodily  danger  may  be  put  the  imminent  risk  of  losing 
one's  entire  fortune  through  the  extravagance  of  the  other  party  ; 
but  in  this  case  it  is  generally  sufficient  to  have  recourse  to  a 
separation  of  property.  See  the  Civil  Code.  art.  1443. 
dj  the  choice      4.  The  choice  of  a  more  perfect  life  may  also  be  a  lawful  cause  of 
feet  life.  '  separation:  a/  if  made  by  mutual  consent  of  husband  and  wife,  and 
under  the   conditions  that  we  shall  presently  explain,  it  affords 
ground  for  separation  ;  b/  if  made  against  the  will  of  one   of  the 
parties,  it  does  not  justify  separation,  except  during  the  first  two 
months  of  marriage,  in  favour  of  the  party  who  thinks  of  entering 
Religion; provided,  however,  that  the  marriage  has  not  been  freely 
consummated.  In  case  of  consummation,  see  what  we  have  said 
inn°i33('). 

loi. 
Practical  ob-     Note.  i.  Where  a  legitimate  cause    or  separation  exists,  the  innocent 

party  (*)  may,  as  a  rule,  under  the  reservations  that  we  shall  indicate  in 

n°  155  s.,  leave  or  send  away  the  other  party  ;  but  ordinarily  he  is  not 

bound  to  do  so  {"),  unless  in  the  exceptional  case  where  a  continuance  of 

1.  In  case  of  consummation  having  been  violently  or  deceitfully  extorted, 
the  offended  party  may,  as  we  have  said,  embrace  the  religious  life  against  the 
will  of  the  other  party,  and  make  a  valid  profession,  without  however,  the 
matrimonial  bond  being  dissolved.  If,  the  marriage  having  been  freely  consum- 
mated, one  or  the  other  party,  against  the  will  of  the  other,  embraces  the  reli- 
gious life  and  makes  his  profession,  this  is  invalid  ;  moreover,  he  may  be 
compelled  by  the  party  remaining  in  the  world  to  resume  cohabitation,  and 
he  is  not  obliged  to  re-enter  Religion  after  the  other  party's  decease.  He  is  not 
allowed,  however,  being  bound  by  a  simple  vow  of  (imperfect)  chastity,  to  con- 
tract a  fresh  marriage,  and  in  the  use  of  his  actual  marriage,  he  must  follow  the 
rules  given  under  no  136. 

2.  The  guilty  party  cannot  take  the  initiative  in  departing,  and  even,  if  aban- 
doned by  the  other  party,  ought  to  hold  himself  in  readiness  to  resume  cohabi- 
tation. He  could  not,  for  example,  embrace  the  religious  life,  unless  the  inno- 
cent party  had  definitively  renounced  intercourse  with  him,  either  by  entering 
Religion,  or  in  some  other  way. 

3.  Formerly,  in  certain  countries,  the  husband  could  not  continue  to  cohabit 
with  an  adulterous  wife,  nor  even  take  her  back  when  repentant.  This  is  clear 


servations. 


THE  COHABITATION  263 

cohabitation  would  entail  for  himself  or  the  children  a  proximate  danger  of 
perversion,  or  would  produce  a  scandal. 

Accidentally  it  may  happen  that  the  innocent  party  is  bound  by  the  law 
of  charity  not  to  make  use  of  the  right,  either  for  the  sake  of  sparing  a 
repentant  partner,  or  on  account  ot  the  children,  so  that  e.  g.,  they  may 
not  be  brought  to  want  or  shame.  Moreover,  even  where  there  is  no 
question  of  an  obligation  of  charity,  it  is  often  better  that  there  should  be  no 
separation  (and  this  is  what  the  parish  priest  and  the  confessor  should 
strive  for,  prudently  and  with  due  consideration  of  all  the  circumstances), 
since  a  separation  is  almost  always  disastrous  for  the  parties,  for  their 
children,  and  for  their  respective  relations. 

2.  Adultery  is  0/ its  nature  a.  cause  o{ perpetual  separation,  so  that  the 
innocent  party  can  never  be  compelled  to  resume  conjugal  life  with  the 
guilty,  even  when  repentant,  unless,  perhaps,  at  times  charity  may  require 
it,  as  we  have  said  above. 

The  other  causes  of  separation  are,  of  their  nature,  temporary  ;  whence 
it  follows  that  on  their  cessation,  e.  g.  by  the  conversion  of  the  apostate, 
or  by  the  amendment  of  the  one  who  was  an  occasion  of  sin,  there  is,  as  a 
general  rule,  an  obligation  to  resume  cohabitation  (').  Occasionally,  how- 
ever, there  may  be  certain  attendant  circumstances  that  render  them 
perpetual ;  such  a  case  is  that  of  a  partner,  who  has  definitively  embraced 
the  religious  state,  or  in  favour  of  whom  the  ecclesiastical  judge  has  pro- 
nounced a  decree  of  perpetual  separation.  This  latter  case  may  be  realised 
when  apostasy  or  heresy  are  in  question,  according  to  cap.  6,  X,  IV,  19, 
and  cap.  21,  X,  III,  32,  even  if  the  guilty  party  repents. 

3.  According  to  the  more  probable  opinion,  as  we  shall  show  later, 
marriages  of  unbaptized  persons  fall  under  the  jurisdiction  of  the  civil 
authority,  and  such  marriages  are  subject  to   the   causes  of  separation 

recognised  by  the  State.  1'6S. 

Precautions 
C.  Reservations  and  necessary  precautions.  ^  ^^  ^'^^^^  •' 

/o  obligation 
The  first  reservation  to  be  made  concerns  the  intervention  of  the  of  applying  to 

ecclesiastical  judge.  '^u^j^S^ 


from  the  texts  quoted  by  Esmein,  o.  c,  II,  91  s.  See  also  St.  Basil,  letter, 
188  (the  first  of  his  canonical  letters),  can.  9  {Migne,  XXXII,  col. 674),  who  speaks 
of  this  custom,  and  also  of  another,  little  in  conformity  with  Holy  Scripture,  as 
he  avows,  by  which  the  wife  was  obliged  to  remain  with  her  husband,  even  if  he 
misconducted  himself  with  an  unmarried  woman. 

I.  See  in  the  Caiwn.  Contemp.,  1908,  p.  157,  a  case  of  separation  for  cruelty 
on  the  part  of  the  husband,  where  the  wife  was  compelled  by  the  Episcopal 
Court  to  resume  cohabitation. 


264  THE   COHABITATION 

a/  under  the       \ .  By  the  common  law  : 
common  law, 

The  party  can,  of  his  own  authority  and  without  waiting  for  a 

judicial  sentence,  leave  or  send  away  the  partner,  not  only  when 
there  is  danger  in  delay,  in  which  case  a  provisional  separation  is 
always  lawful,  but  also  when  the  adultery  is  certain  and  notorious. 
The  reason  of  this  is,  on  the  one  hand,  that  the  Church  clearly 
permits  it  (see  cap.  4,  on  this  title)  (') ;  and  on  the  other  hand,  that 
in  this  case  a  judicial  declaration  serves  no  purpose,  since  the 
certainty  of  the  fact  is  supposed  ;  and  as  it  is  notorious,  all  the 
requirements  of  the  forum    externum  are  satisfied. 

Apart  from  this  solitary  case,  it  is  not  lawful  for  the  one 
party  to  break  the  community  of  life  by  his  own  private  autho- 
rity, seeing  that  separation  is  a  matter  for  the  forum  externum. 
Consequently  where  the  adultery  is  doubtful  or  occult  ('^),  or  where 
some  other  canonical  cause  is  invoked,  recourse  must  be  had  to 
the  Ordinary,  to  whom  it  belongs  to  declare  or  decide  that  there 
are  grounds  for  proceeding  to  separation  ('). 

Note.  This  is  what  the  common  law  says  ;   but  in  practice  it  is 

better  never  to  proceed  to  definitive  separation  before  obtaining 

the  judgment  of  the  Church,  even  when  the  adultery  appears  to  be 

certain  and  notorious,  the  more  so,  as  in  this  matter  error  and 

exaggeration  may  easily  occur. 
156. 

hj  under  the      2.  By  the  particular  law  of  the  diocese  of  Bruges  : 

lawof\he         «  It  is  not  lawful  for  any  married  person  to  leave  the  conjugal  abode, 
diocese  of    with  the  intention  of  separating,  on  his  own  authority  and  without  consult- 
^^'■S^^-     Ij^  ijig  parish  priest  » (*). 


1.  The  law  texts  quoted  by  Esmein,  o.  c,  II,  p.  89,  to  prove  the  necessi- 
ty of  the  intervention  of  the  ecclesiastical  judge,  relate  to  the  dissolution  of  the 
marriage  bond. 

2.  One  is  surprised  to  find  some  authors  affirming  that  in  the  case  of  adultery, 
certain  but  occult,  the  innocent  party  may,  in  the  forum  of  his  own  conscience, 
proceed  to  separation  on  his  own  authority.  But  separation  is  always  a  matter 
for  the  forum  externum. 

3.  Gasparri,  o.  c,  n"  116,  teaches,  however,  that  temporary  separation  is 
lawful  for  the  innocent  party,  on  his  own  authority,  in  case  of  heresy  or  apos- 
tasy of  the  other  party.  Gennari-Boudinhon,  o.  c  ,  Part  I,  I,  p.  384,  adds 
to  that  the  case  in  which  the  innocent  party  could  not  prove  in  ihe  fo rum  exter- 
num the  existence  of  a  cause  that  is  sufficient  in  fact. 

4.  Decree  of  the  Prosynodal  Congr.  of  Bruges,  1893.  It  at  the  same  time  re- 


rule. 


THE   COHABITATION  265 

Thus,  apart  from  the  case  in  which  there  is  danger  in  delay,  when  provi- 
sional separation  may  be  put  in  force  without  consulting  anyone,  married 
persons  cannot  leave  or  send  away  one  another,  ei}en  in  the  case  of  public 
adultery,  "without  first  consulting  the  parish  priest. 

It  is  the  business  of  the  parish  priest  to  draw  up  the  case,  but  not  to  decide 
it  judicially  ;  that  belongs  to  the  Ordinary.  The  Bishop  is  the  judge  of  the 
external  forum  ;  and  it  is  to  him,  except  in  the  case  of  certain  and  notorious 
a<^«/<gyy  ('),  that  causes  of  separation  must  be  referred  ;  nevertheless,  the 
deans,  in  virtue  of  an  episcopal  provision  (*),  may  permit  c  to  the  faithful  of 
their  district  provisional  corporal  separation,  but  must  report  it  to  the  Ot- 
Aimry  ,\{within  the  space  of  two  months  reconciliation  has  not  taken  place  ». 
Noting  this,  the  following  is  the  course  to  be  followed  in  practice: 

a/  Parish  priests  cannot,  apart  from  the  case  of  adultery  certain  and    Pructical 
notorious,  permit  corporal  separation,  without  the  preliminary  permission 
of  the  Bishop,  or  provisional  permission  of  the  dean.  It  is  best  to  have 
recourse  to  the  latter,  either  in  a  case  of  emergency,  or  when  the  separ- 
ation is  likely  to  be  of  short  duration. 

b/  If  married  people  have  already  separated  on  their  own  authority,  and 
refuse  to  resume  cohabitation,  the  parish  priest  must  (saving  the  exception 
already  mentioned)  lay  the  facts  before  the  Bishop,  or,  if  there  is  hope  of  an 
early  reconciliation,  before  the  dean,  and  await  the  decision.  The  confessor, 
on  his  side,  cannot  absolve  such  separated  married  people,  without  having 
first  admonished  them(^)of  the  obligation  they  are  under  of  presenting  them- 
selves to  the  parish  priest,  and  of  laying  the  state  of  affairs  before  him,  out 
of  confession.  If  he  finds  them  ready  to  do  so,  he  can  then  absolve  them. 

c/  If  the  Bishop  grants  perpetual  separation,  it  is  suflTicient  that  such 
permission  be  obtained  once  for  all:  if  he  pronounces  only  temporary  se- 
paration, e.  g.,  for  six  months,  then  the  permission  must  be  renewed  in  due 
time.  For  this,  it  will  be  an  advantage  for  the  parish  priest  to  have  a  list  of 
the  married  persons  in  his  parish,  who,  with  the  consent  of  the  Bishop,  are 
living  temporarily  separated.  This  list  should  be  sent  to  the  Bishop's  house 
at  a  suitable  time,  for  confirmation  and  prolongation,  if  there  is  occasion  for 


quired  the  priests  of  parishes  where  these  separations  are  somewhat  frequent,  to 
admonish  the  faithful  to  this  effect,  especially  at  the  approach  of  Paschal  time, 
and  to  read  to  them  the  formula  given  in  the  Liber  Maitualis,p.  lOi.See  Acta  Congr. 
Prosyn.,  torn.  V. 

1.  Ada  Congr.  Prosyn.,  1908 j  in  the  Coll.  Brug.,  t.  XIII,  p.  431. 

2.  Staiuta  dioec,  p.  69. 

3.  We  put  aside  the  case  of  good  faith,  when  the  confessor  foresees  that  tne 
penitent  being  admonished  will  refuse  to  obey,  and  if  at  the  same  time  there 
is  no  scandal." 


266 


THE   COHABITATION 


1S7. 
Case  oftlie 
party  forsa- 
ken, 


or  absent. 


it ;  each  time  any  change  in  the  circumstances  of  each  case  should  be  care- 
fully noted  therein,  or  the  fact  that  there  is  no  change  (•). 

Note.  1 .  The  case  of  the  party  forsaken  is  not  included  in  the 
decrees  of  the  diocese  of  Bruges,  and  consequently  it  must  be 
solved  in  accordance  with  the  general  principles  : 

a/  If  it  is  through  the  fault  of  the  party  forsaken  that,  the  other 
party  has  gone  away,  the  former  must  promise,  under  pain  of 
being  refused  absolution,  to  make  every  possible  effort  to  bring 
about  a  resumption  of  conjugal  life,  and,  in  case  of  failure,  to  lay 
the  matter  before  the  parish  priest. 

b/  If  the  forsaken  part}'^  is  not  in  fault,  and  it  does  not  depend  on 
him  to  resume  cohabitation  :  then,  if  the  matter  is  public,  he  is 
not  bound  to  do  anything  ;  if  it  is  not  public,  he  is  bound  (and  the 
confessor  should,  as  a  rule,  admonish  him  of  the  fact)  to  lay  the 
circumstances  before  his  parish  priest :  «  for,though  he  be  innocent 
in  conscience,and  the  conjugal  life  has  not  been  dissolved  through 
his  fault,  it  is  nevertheless  necessary  that  his  innocence  should 
be  known  to  the  external  forum  of  the  Church,  and  that  so  the  sen- 
tence of  the  ecclesiastical  judge  may  prevent  him  from  becoming 
a  cause  of  scandal.  If  the  party  in  question  promises  in  the 
tribunal  of  penance  to  fulfil  this  obligation,  he  may  be  absolved. 

2.  Absence  does  not,  as  a  general  rule,  miply  separation.  It  may 
be  mutually  agreed  upon  without  the  least  intervention  of  authority  ; 
the  husband  may  even  permit  himself  a  short  absence  from  home 
against  the  will  of  his  wife,  provided  that  he  has  some  reasonable 
cause  for  doing  so,  such  as  discharging  his  duties,  or  attending  to 
his  business. 

Sometimes,  however,  absence  from  home  constitutes  a  real 
separation,  as  for  example,  when  one  of  the  parties  goes  away 
to  establish  himself  at  a  distance,  without  any  intention  of 
returning,  and  the  other  party  refuses  to  follow  him.  In  such 
a  case,  it  is  necessary  to  apply  the  rules  already  given,  as  to  the 
need  of  a  canonical  cause,  and  recourse  to  the  parish  priest  and 
Ordinary.  The  party  who  goes  away  must  be  considered  as  the 


I.  Chaplains  to  institutions  for  the  aged,  should  also  make  it  their  business  to 
know  if  any  of  the  old  men  under  their  charge  has  a  wife  still  living,  and  simi- 
larly cared  for  in  some  other  institution.  Such  are  to  be  considered  as  corporally 
separated,  and  their  case  referred  to  the  Ordinary. 


THE   COHABITATION  267 

author  of  the  separation,  and  the  other  as  deserted,  by  his  own 

fault  or  otherwise,  according  as  he  was  free  in  conscience  to 

refuse  to  make   the  change,  or  bound  to  follow  the  other.  See 

n°  150. 

i58. 
The  second  reservation  to  be  made  affects  only  the  case  of  2o  special  re- 

separation  wiih  a  view  to  a  more  perfect  life.  ^^^^case  of'' 

The  Church  requires,  as  often  as  the  parties  are  both  of  one    separation 

with  a  view 
accord  in  their  desire  for  separation,  a/  either  that  they  should  both     to  a  more 

embrace  the  religious  life  in  a  religious  Order  strictly  so  called;  or  P^*j^^^W^' 

b/  that  at  least  one  of  them  should  embrace  it  and  make  solemn 

profession,  provided  the  other  has  already  passed  the  age  when 

the  passions  are  strong,   and  being  of  a  moral  character  beyond 

suspicion  ('),   choses  either  to  receive  Orders,  or  take  a  vow  of 

chastity  in  a  religious  congregation  that  is  not  in  the  strict  sense  a 

religious  Order,  or  occasionally  in  the  world  ('). 

Nevertheless,  the  Church  sometimes  modifies  this  provision  of 

the  law,  and  permits,   e.  g.,  a  man  still   in  the  prime  of  life,  to 

receive  Orders,  after  the  solemn  profession  of  his  wife  ;  or  allows  a 

young  wife,  whose  husband  has  entered  Religion,  to  take  a  vow  of 

chastity  in  the  world  ;  or,  again,  a  wife  more  advanced  in  years, 

whose  husband  has  been  admitted  to  Orders,  to  make  a  vow  ot 

chastity  without  entering  a  religious  Order  ('). 

II.  Separation  a  toro,  or  of  bedchamber. 

159. 
Of  its  nature,  this  partial  separation  is  lawful,  outside  the  cases  B.  Separation 

in  which  corporal  separation  is  permitted,  as  often  as  the  parties 


1.  It  belongs  to  the  Bishop  to  iudge  of  it  ;  as  a  rule  in  this  matter  a  woman 
is  reputed  to  have  passed  that  age  at  50,  and  a  man  at  60. 

2.  That  this  vow  may  be  duly  authenticated,  it  must  be  taken  in  the  presence 
of  the  Ordinary,  or  his  delegate,  and  of  two  witnesses. 

3.  Cf.  Bened.  XIV,  De  Synod,  dioec.,  L.  XIII,  c.  XII,  n.  16;  Feye,  o.  c,  nos 
500-513  and  no  524 ;  Rosset,  o.  c.,  t.  VI,  nos  3932-3944.  The  Attal.  eccl. ,  1904,  p. 
90,  give  an  example  of  permission  granted  under  this  latter  form  ;  cf.  also 
Leitner*,  Lehrb,  p.  199.  There  are  some  authors  who  hold  that  a  dispensation 
is  not  required  in  this  case,  as  they  say  that  a  vow  emitted  under  these  precise 
conditions,  constitutes  a  diriment  impediment  of  marriage,  and  is  consequently 
equivalent  to  a  solemn  profession  (see  Santi,  o.  c,  1.  Ill,  tit.  32,  n.  9 ;  Ojetti, 
Synopsis,  II,  n.  1858,  Vo  Divortium) .  But  it  does  not  appear  that  this  opinion  is 
admissible,  as  will  be  pointed  out  in  n°  284. 


268  THE   COHABITATION 

mutually  consent  to  it,  and  also  against  the  will  of  one  ot  them, 
whenever  there  is  a  sufficient  reason  for  refusing  the  marriage 
debt,  according  to  the  rules  laid  down  above.  This  separation  does 
not  concern  the  external  forum,  and  consequently  depends  on  the 
personal  initiative  of  the  parties. 

When  one  of  the  parties  has  a  right  to  make  the  separation  a 
toro,  there  is  no  obligation  to  do  so,  except  where  the  use  of  marri- 
age has  become  unlawful  for  one  or  the  other,  e.  g.,  in  the  case 
of  impotence  supervening  on  marriage.  Apart  from  this  exception, 
it  is  often  better  not  to  use  the  right,  so  as  to  avoid  many  incon- 
veniences ;  even  it  may  sometimes  happen  that  the  law  oi  charity 
prevents  the  exercise  of  the  right  of  separation,  e.  g.,  where  there 
is  danger  of  incontinency  for  either  party. 

Scholion.  Civil  legislation. 
Civil  V/e  have  seen  above,  n°  150,  that  the  Code  Napoleon  expressly  recog- 

^  '    nises  the  right  and  obligation  to  cohabitation,  leaving  to  the  husband  the 

choice  of  the  conjugal  domicile. 

In  what  concerns  the  complete  separation  of  husband  and  wife  ('),  which 
it  calls  separation  de  corps,  art,  306  makes  the  following  provision  :  «  Dans 
les  cas  oil  il  y  a  lieu  a  la  demande  en  divorce  pour  cause  determinee,  il 
sera  libre  aux  epoux  de  former  demande  en  separation  de  corps  ». 

Thus  the  Civil  Code  does  not  permit  corporal  separation  by  mutual  con- 
sent of  the  parties,  a  consent  which  nevertheless  suffices,  according  to  art. 
233,  to  obtain,  under  certain  conditions,  a  sentence  of  divorce.  It  requires 
for  corporal  separation  a  cause  determinee,  one  of  those  that  will  be  set 
forth  more  at  length  below,  viz.,  adultery  (^)  excesses,  and  cruelty  together 
with  grave  injury,  according  to  articles  229,  230  and  231. 

In  order  that  separation  may  be  legitimate  before  the  civil  law,  there 
must  be  a  judicial  decision,  as  is  clear  from  the  wording  of  art.  306  quoted 
above. 


1.  The  civil  law  decrees  nothing  as  to  separation  of  bedchamber  alone. 

2.  Adultery  on  the  part  of  the  wife  is  sufficient  to  enable  the  husband  to  claim 
separation  ;  on  the  other  hand,  in  order  that  adultery  on  the  part  of  the  husband 
may  have  a  like  effect  in  relation  to  the  wife,  it  is  necessary  that  the  husband 
should  have  ftrowg'/t^  his  mistress  into  the  conjugal  dwelling.  We  shall  see,  how- 
ever, that  even  without  that,adultery  on  the  part  of  the  husband  may  be  a  cause 
of  divorce,  and  so  of  separation,  on  account  of  the  grave  injury  that  it  involves. 


MUTUAL  LOVE  269 

Article  4.  Mutual  love  and  assistance. 

161. 

As  we  have  seen,  the  marriage  bond  brings  with  it  for  husband  and  wife.    Many  con- 
in  virtue  of  the  essential  end  of  marriage,  the  right  and  obUgation  to  the  yln^^inHand 
marriage  debt,  to  the  education  of  the  children,  and  to  community  of  dwell-    and  wife  to 
ing  and  of  bedchamber.  "'"'""^  ^^*"'' 

But  these  bonds  and  these  intimate  and  exclusive  relations,  this  ceaseless 
community  of  life  by  day  and  night,  these  common  and  convergent  efforts 
for  the  good  education  of  the  children,  are  inconceivable,  and,  as  experience 
proves,  unstable,  where  complete  union  of  heart,  unfailing  love,  and 
mutual  assistance  given  in  the  thousand  daily  needs  of  domestic  life  are 
wanting. 

The  voice  of  nature  itself  impels  husband  and  wife  to  love  and  mutually 
assist  one  another. 

The  sexual  relations,  blending  husband  and  wife  together  in  one  flesh, 
still  further  stimulate  and  nourish  this  love  ;  and  children,  the  fruit  and 
pledge  of  ailection,  cement  and  strengthen  it. 

Saint  Paul,  in  his  Epistle  to  the  Ephesians,  V,  28,  29  (and  his  words  are 
true  for  wives  also)  thus  speaks  of  conjugal  love,  basing  it  on  the  bodily 
union  :  «  So  also  ought  men  to  love  their  wives  as  their  own  bodies.He  that 
loveth  his  wife,  loveth  himself.  For  no  man  ever  hated  his  own  flesh,  but 
nourisheth  and  cherisheth  it  ». 

Finally  St.  Francis  de  Sales,  o.  c,  P.  Ill,  ch.  38,  is  eloquent  in  speaking  to  a  love,  holy 
of  Christian  love,  of  love  made  holy  and  supernatural :  <  It  is  nothing  to  /"^ff""'' 
say  to  you,  husbands  and  wives  :  love  one  another  with  a  natural  love,  for 
mated  doves  do  that ;  or  to  say ;  love  one  another  with  a  human  love,  for 
love  like  that  the  heathens  had  ;  but,  following  in  the  footsteps  of  the  great 
Apostle,  I  say  to  you  :  'Husbands,  love  your  wives,  as  Christ  also  loved 
the  Church' ;  wives  love  your  husbands  as  the  Church  loves  her  Saviour.  It 
was  God  who  brought  Eve  to  the  first  parent  of  our  race  and  gave  her  to 
him  for  wife  ;  it  was  God  also,  my  friends,  who  with  unseen  hand  tied  the 
knot  that  binds  you  in  holy  Matrimony,  and  gave  you  to  one  another.  Why, 
then,  should  you  not  love  one  another  with  a  most  holy,  whole-hearted  and 
divine  love  ?  »  ('). 


I.  The  words  of  J.  L.  Vivis,  De  officio  mariti,  Bruges,  1529,  are  to  the  point  : 
«  Terrestris  amor  caecus  est,  abjectus,  obscoenus,  circa  villa  et  spurca  ;  nam 
praestantiora  ilia  nunquani  intuetur.  Coelestis  vero  amor  oculatus,  virtutis 
rerumque  vere  pulcherrimarum,  et  coelestibus  similium  cognatarumque  aflfec- 
tator.  Mariti  qui  uxorum  vel  formam  vel  pecuniam  amant,  terrestri  amori  sunt 
subditi  et  excoecati,  nee  in  amando  rationem  neque  modum  uUum  norunt ;  qui 
vere  mariti  sunt  et  animas  et  virtutes  diligunt,  ii  non  carent  judicio  in  amore,  et 
coelestis  illi  amoris  vi  et  spiritu  quodam  infiati  prudentissime  amant,  amorque 


270  MUTUAL  LOVE 

This  love  is  quite  compatible  with  the  husband's  precedency.  He  is, 
indeed,  the  head  of  the  family,  and  he  has  authority  over  his  wife  ;  it  is 
incumbent  on  him  to  protect  her,  and  to  make  proper  provision  for  her 
support ;  but  such  headship  is  perfectly  consistent  with  mutual  love,  and 
is,  in  truth,  tempered  thereby('). 

The  civil  law.  Note.  On  this  head  the  Code  Napoleon  declares,  art.  212  :  «  Les  ^poux 
se  doivent  mutuellement  fidelite  (*),  secours  ('),  assistance  (*)  »  ;  and,  art. 
213  :  «  Le  marl  doit  protection  a  sa  femme,  la  femme  ob^issance  a  son 
marl  >  (*). 


ille  purus  et  sanctus  non  impellit  illos  aut  praecipitat,  quod  facit  terrenus 
violentia,  sed  sapienter  persuasos  molliter  quo  oportet  adducit.  Amat  sapiens 
maritus  uxorem  et  quidem  validissime,  sed  ut  parens  fiUum,  ut  caput  corpus,  ut 
animus  carnem,  ut  Christus  Ecclesiam  ». 

I.  Cf.  the  Encyclical  Arcanum  of  Leo  XIII :  «  The  husband  is  the  chief  of  the 
family,  and  the  head  of  the  wife.  The  woman,  because  she  is  flesh  of  his  flesh, 
and  bone  of  his  bone,  must  be  subject  to  her  husband  and  obey  him  ;  not,  indeed, 
as  a  servant,  but  as  a  companion.  In  such  obedience  there  is  not  wanting  either 
honour  or  dignity.  Since  the  husband  represents  Christ,  while  the  wife  represents 
the  Church,  let  there  always  be,  both  in  him  who  leads  and  in  her  who  obeys, 
heavenly  love  as  the  guide  of  their  duties  »  {Authorised  Translation,  London, 
1880).  Cf.  Coll.  Brug.,  t.  IX,  p.  189  ;  Catech.  Cone.  Trid.,  P.  II,  c.  VIII,  no  36  s. 

On  these  mutual  relations  of  husband  and  wife,  and  the  allied  question  of 
feminism  in  relation  to  the  natural  and  Christian  law  ;  cf.  St.  Thomas,  Sup^pl., 
q.64,  art.  5 ;  C.Willbms,  Philosophia  Moralis,  Treviris,  1909,  p. 368  ;  Castelein, 
o.  c,  p.  540  ss.  and  p.  562  ss.  ;  Sertillanges,  Feminismc  et  Christianisme,  Paris, 
1908,  p.  343-377  ;  Leitner*  Lehrb.,  p,  538  ss.,  and  p.  36  ss.,  who  shows  the  state 
of  inferiority  in  which  the  wife  was  kept  of  old,  and  the  little  consideration  shown 
her. 

a.  To  this  duty  is  opposed  adultery,  which  in  the  Belgian  Penal  Code,  art.  387 
ss.,  is  liable  to  heavy  penalties,  especially  on  the  part  of  the  wife,  but  only  in  the 
case  in  which  the  injured  party  demands  it. 

3.  The  duty  oi  secours  consists  in  the  obligation....  of  providing  for  his  partner 
all  that  is  needful  for  living.  Planiol,  o.  c,  I,  n.  904. 

4.  «  The  assistance  is  not  to  be  confounded  with  the  secours  ;  it  consists  in  the 
personal  care  to  be  bestowed  upon  the  partner  in  sickness  or  infirmity  ».  The 
same,  n"  917. 

5.  In  virtue  of  the  principle  inserted  in  article  213,  the  husband  is  the  head  of 
the  family  ;  the  wife  is  placed  in  dependence  on  him  and  under  his  protection  ; 
she  is,  so  to  speak,  in  a  state  of  quasi-minority  with  respect  to  her  husband,  and 
placed  under  his  care.  This  state  of  dependence  appears  in  the  obligation  she  is 
under  of  following  her  husband  in  his  change  of  domicile  (see  above,  no  150), 
in  her  legal  participation  in  his  nationality  (art.  5  and  n  of  the  law  of  8  June 
1909),  and  above  all,  in  legal  incapacity.  She  cannot,  as  a  general  rule,  exercise 


EFFECTS  OF  THE  CONJUGAL  BOND  271 

Chapter  II, 

EFFECTS  OF  THE  CONJUGAL  BOND. 

162. 

The  obligations  and  rights  of  which  we  have  hitherto  spoken  Effects  of  the 

are  the  constituent  elements  of  the  conjugal  bond.  This  bond 
brings  with  it  certain  legal  effects,  with  which  we  shall  now 
occupy  ourselves,  while  considering  anew  marriage  as  a  contract, 
apart  from  its  sacramental  character. 

The  first  effect   of  the  conjugal  bond  is  the  constitution  of  a  1°  Constitu- 
distinct  family. The  husband  and  wife,  in  marrying,  see  themselves   distinct  fa- 
uprooted,  as  it  were,  from  their  own  families  in  order  to  bring       mily ; 
into  being  a  new  family,  independent  and  self-subsisting,  in  which 
new  and  intimate  relations  find  their  place  between  husband  and 
wife,  and  between  parents  and  children,   under  the  headship  of 
the  husband  (•).  This  is  expressed  in  Genesis,  II,  24,  by  the  words: 

any  legal  act,  without  her  husband's  authority  (art.  215  ss.).  Observe,  however 
that  the  right  of  corporal  correction  formerly  in  force,  no  longer  exists.  See  on 
this  subject  Planiol.  o.  c,  I,  no  922,  Lotthe,  o.  c,  p.  27  ss. 

Planiol,  o.  c,  I,  no  930  explains  at  length  this  legal  incapacity  of  the  wife; 
cf.  also  Van  Biervliet,  0ns  Burgcrlijk  Wetboek,  Antwerpen,  1904,  who  shows 
that  this  idea  was  borrowed  from  the  ancient  German  law  ;  on  p.  2,  he  foresha- 
dows a  change  to  be  introduced  into  the  Code  in  this  respect,  by  the  commission 
charged  with  the  revision  of  the  Civil  Code,  and  observes  that  the  Belgian  law 
of  10  March  1900  has  already  mitigated  the  original  rigour  01  the  legal  provi- 
sions (Servais  et  Mechelinck,  Les  Codes  Beiges,  p.  1014SS).  See  also  Devos, 
Degekuwde  Vrouw  ;  Sertillanges,  1.  c. ;  Castelein,  o.c,  p.  562  ss.  For  a  com- 
parison between  the  law  of  the  Code  Napoleon  and  that  of  the  new  German 
Code,  in  which  the  wife's  legal  capacity  is  almost  entirely  secured,  consult  the 
learned  pages  of  CriiTingn,  o.  c,  p.  169-171  ;  read  also  Saleilles,  Lm  condition 
juridique  de  la  fcmme  dans  le  nouveau  Code  civil  allemand,  in  the  Ref.  Soc. ,  t.  42, 
p.  717  ss.  and  the  Rev.  eccl.  de  Metz,  1901,  p.  203  ss. 

I.  This  constitution  of  a  distinct  family  by  marriage  is  sanctioned  in  the  Code, 
Napoleon  by  the  fact  that  the  wife  is  entirely  withdrawn  from  the  authority  of 
her  father  and  of  her  own  family ;  that  she  is  emancipated  by  the  very  fact  ot 
her  marriage  ;  that  she  changes  her  own  name  for  that  of  her  husband ;  and 
finally  that  she  is  bound  to  the  domicile  of  her  husband,  as  we  have  already  said. 

In  the  Roman  law  it  was  quite  different.  The  son  of  the  lamily,  not  yet  eman- 
cipated, remained  after  marriage  under  the  power  of  the  paterfamilias  or  head 
of  the  family,  as  well  as  the  children  born  to  him.  As  to  the  wife,  if  she  married 
in  manu,  she  passed,  indeed,  into  the  family  of  her  husband,  but  not  under  his 
power,  but  under  that  of  his  paterfamilias  ]  she  had  no  authority  over  her  own 
children,  with  respect  to  whom  she  was  as  a  sister,  while  with  respect  to  her  bus- 


272  EFFECTS  OF  THE  CONJUGAL  BOND 

€  a  man  shall  leave  father  and  mother,  and  shall  cleave  to  his 
wife  ». 
2o  special  re-  The  second  effect,  which  we  shall  develop  later  on,  consists  in  a 
a  tons  up  ,  gpggjgjj  relationship  created  by  the  conjugal  bond  between  each  of 
the  parties  and  the  relations  of  his  or  her  partner.  For,  a/  the 
marriage,  even  before  consummation,  causes  each  of  them  to 
contract  the  diriment  impediment  of  public  decency,  in  respect  of 
other  members  of  the  partner's  family  to  the  fourth  degree  ;  and 
b/  the  marriage,  when  consummated,  gives  rise  to  the  diriment 
impediment  of  affinity  with  the  same  persons,  an  affinity  of  a 
different  kind  from  that  which  arises  from  sexual  relations  between 
unmarried  persons  ('). 

Moreover,  the  children  are  related  to  the  families  of  their  father 
and  mother,  and  contract  with  all  the  members  thereof,  to  the 
fourth  degree,  a  connection  and  consequent  impediment  of  con- 
sanguinity, differing  again  from  the  corresponding  connection  and 
impediment  contracted  out  of  marriage  (*). 


band  she  was  as  a  daughter  (Lefebvre,  o,  c,  p.  6i,  64  and  67).  If  she  married 
sine  manu,  she  remained  under  the  power  of  her  own  paterfamilias,  and  she 
continued  to  belong  to  a  family  other  than  that  of  her  husband  and  of  her  own 
children,  for  whom  she  was  as  a  stranger,  so  that  they  were  not  related  to  her, 
and  had  no  right  to  succeed  as  her  heirs  (ibid,,  p.  73  ss.  and  82  ss  ). 

In  the  ancient  Germanic  law,  marriage  established  a  distinct  family,  and  inti- 
mate relations  between  husband  and  wife,  and  between  parents  and  children. 
Nevertheless,  the  authority  of  the  husband  over  his  wife  and  children  was  shared 
and  tempered  by  that  of  a  sort  oi family  council,  composed  of  all  the  male  rela- 
tions of  full  age.  That  council  has  its  counterpart  at  the  present  day  in  the 
Vormundschaftsgericht,  recently  introduced  in  Germany  by  the  Code  of  1900.  Cf. 
Cretinon,  1.  c,  no  175. 

1.  Of  itself,  such  illicit  affinity  is  not  amenable  to  the  external  forum,  and  does 
not  invalidate  marriage  beyond  the  second  degree.  In  our  (the  Belgian)  civil 
law,  as  we  shall  show  later  on,  when  speaking  of  affinity,  it  has  its  source  in 
marriage,  whether  consummated  or  not,  but  it  does  not  involve  the  impediment 
of  public  decency  (By  the  English  law  also,  affinity  is  created  only  by  marri- 
age. Tr.). 

2.  Lefebvre,  o.  c,  p.  41  s.,  shows  how  in  the  Code  Napoleon  the  regulation 
of  relationship  is  also  based  upon  marriage.  See  above,  n°  149,  and  also  what  we 
have  just  said  in  the  note  on  the  ancient  Roman  law  :  in  marriage  sine  ma«M,thc 
wife  was  not  looked  upon  as  related  even  to  her  own  children ;  and  in  marriage 
atm  manu,  the  children  were  not  related  to  their  maternal  ,  but  only  to  their 
paternal  ancestors. 


THE  LEGITIMACY   OF  THE  CHILDREI^  2^3 

163. 

The  third  effect  is  the  legitlmacy  of  the  children.  50  legitimacy 

of  the  child- 
We  must  now  set  forth  the  canonical  discipline  :  show  how,  in  its        ren. 

eyes,  marriage  is  the  source  of  legitimacy,  and  in  particular  explain 

how  1°  marriage  renders  legitimate,  children  conceived   or  born 

therein  ;  2°  how  and  to  what  extent  it  is  capable  of  legitimating 

children  illegitimate  by  birth. 

First  proposition.  Legitimate  (otherwise  called  legitimate  and    Legitimate 
natural)  children,  before  the  ecclesiastical  law,  are  such  as  are  born  of  f;"sgl'^^*^f 
a  mother,  who,  at  the  time  of  their  conception,  was  lawfully  married,  or     «  valid, 
of  one  who,  though  inval idly  married,  was  married  in  good  faith  before 
the  Church,  or  of  one,  who,  at  least  b  if  ore  their  birth,  had  contracted  a 
valid  or  putative  marriage. 

We  must  except  children  who  are  clearly  proved  to  be  by  some  other 
man  than  the  husband  of  the  mother  ;  as  well  as  those  conceived  by  con- 
jugal act  of  the  parents,  after  the  father  or  mother,  subsequently  to  a 
former  consummation  of  the  marriage,  have  taken  a  solemn  vow  of  chas- 
tity, or  have  received  sacred  Orders. 

1°  P«^a//z;tf  marriage,  i.  e.,  marriage  contracted  in  good  faith,  or  putative 
suffices  for  the  legitimacy  of  the  children,  as  appears  from  cap.  2,  *^<^^^^S^' 
X,  IV.  170,  as  well  as  from  chapters  8,  11  and  14  of  the  same 
title  (*).  But  it  is  neccessary  that  the  marriage  should  have  been 
contracted  publicly,  and  not  clandestinely,  or  in  opposition  to  the 
Church,  as  may  be  gathered  from  the  decree  quoted,  and  as  is  dis- 
tinctly declared  by  cap.  3,  X,  IV,  3  ('),  and  the  Council  of  Trent, 
Sess,  c.  I,  De  Reformatione  Matrimonii.  See  above  n°  35. 


I.  «  When  canonical  judgment  of  divorce  (quoad  vinculum)  between  the  man 
and  woman  has  been  pronounced  (i.  e.,  when  the  nullity  of  the  marriage  has 
been  declared),the  children  shall  not  suffer  thereby,  when  the  parents  are  known 
to  have  married  publicly  and  not  in  "opposition  to  the  Church.  Therefore  we 
ordain  that  the  children  that  such  persons  have  had  before  the  divorce,  or  who 
have  been  conceived  before  the  pronouncing  of  judgment,  shall,  notwithstan- 
ding, be  considered  as  legitimate  ». 

3.  Cf.  EsMEiN,  o.  c,  II,  p.  33-37,  who  shows  how  this  provision  of  the  law  was 
introduced.  Peter  Lombard,  1.  IV  Sent.,  was  the  first  to  raise  a  doubt  on  this 
subject.  He  was  followed  by  Magister  Rolandus,  who,  on  becoming  Pope,  settled 
the  question. 

3.  «  If  anyone  presume  to  contract  one  of  these  clandestine  or  forbidden  marri- 
ages in  the  forbidden  degree,  even  without  knowledge  of  such  relationship,  the 

18 


274  '^HE  LEGITIMACY   OF  THE   CHILDREN 

The  good  faith  o/o«^  of  the  parties  suffices,  whether  it  arises 
from  ignorance  of  fact  or  of  law,  provided  that  the  ignorance  is  not 
affected.  This  is  deduced  from  the  tenor  of  the  last  decree  men- 
tioned above,  according  to  the  interpretation  of  experts  in  canon 
law  {'). 
contracted        2.  We  say  :  children  born  of  a  mother  who,  at  the  time  of  their 
conception  or  conception  or  at  least  before  their  birth,  has  contracted  a  valid  or 
be/ore  their   putative  marriage.   Of  itself,  legitimate  birth  supposes  legitimate 
conception,  and  it  is  clear  that  a  child  conceived  in  marriage  will  be 
regarded  as  legitimate  (*)  ;  but  nevertheless  legitimacy  is  possible 
outside  of  this  hypothesis.  For,  as  Schmalzgrueber  says,  1.  c, 
n°  lo,  though  legitimacy  is,  in  itself,  an  effect  of  the  natural  law, 
yet  it  is  also  dependent  on  the  positive  law,  which  has  the  power  of 
extending  the  effects  of  legitimacy  to  those  of  illegitimate  birth,  as 
is  done  in  the  case  of  legitimation  by  subsequent  marriage. 

If,  therefore,  a  child,  conceived  before  marriage,  is  not  born  until 
after  marriage,  it  is,  according  to  the  accepted  practice  of  the 


children  born  of  such  union  shall  be  considered  as  absolutely  illegitimate,  and  the 
ignorance  of  their  parents  shall  not  avail  them,  since  the  father  and  mother,  by 
contracting  in  such  a  way,  appear  to  have  been  affecting  ignorance  rather  than 
really  wanting  in  knowledge.  In  like  manner  children  must  be  regarded  as 
illegitimate,  when  6o^A  of  their  parents  married  ^»oz£/i«^  of  their  being  under 
a  real  impediment,  even  though  no  opposition  was  made,  and  the  marriage 
took  place  before  the  Church  ». 

It  is,  therefore,  necessary  that  the  requisite  proclamations  should  be  made, 
and  that  the  form  prescribed  by  the  Council  of  Trent  should  be  duly  observed, 
at  least  in  the  case  of  marriages  that  are  subject  to  the  law  of  clandestinity,  Cf. 
vScHMALZGRUBBER,  ou  the  tit.  XVII,  n°s  42-43  ;  De  Bbcker,  De  Matr.,  p.  371-373 
together  with  the  note. 

I.  For  the  text  of  the  decree  does  not  in  any  way  restrict  the  case  of  good  faith 
to  ignorance  of  fact. It  excludes  only  affected  ignorance,  and  declares  illegitimate 
only  those  children,  both  of  whose  parents  knew  that  they  were  bound  by  an 
impediment,  i.  c.,  when  both  acted  in  bad  faith.  Observe  however,  that  even  good 
faith  at  the  time  of  the  marriage  does  not  fully  suffice  :  «  it  is  necessary  that 
there  should  still  be  good  faith,  at  least  on  one  side,  at  the  time  of  conception  ». 
REiFENSTUEL,  on  tit.  XVII,  n.  5  ;  Monitore  eccl.,  jgx2,  p.  43  s. 

3.  As  a  rule,  conception  is  supposed  to  have  taken  place  during  the  marriage, 
if  the  child  is  born  after  the  iSo'h  day  following  the  marriage  ceremony,  and 
before  the  300th  following  its  dissolution,  e.  g.,  by  the  decease  of  the  husband. 
Cf.  ScHMALZGBUEBBR,  1.  c,  n°^  40-4! ;  Reiffenstuel,  1.  c,  nos  19-33 ;  Gasparri, 
0.  c,  II,  no  1069  ;  De  Becker,  De  Mutr,,  p.  371  j  Wernz,  o.  c,  IV,  no  6S5. 


t64. 


THE  LEGITIMACY  OP  THE  CHILDREN  275 

ecclesiastical  courts,  considered  as  legitimate.  In  such  a  case  the 
child  is  presumed  to  be  that  of  the  husband,  and  the  sexual  rela- 
tions that  led  to  its  conception  are,  by  a  legal  fiction,  considered 
as  legitimate  by  reason  of  the  marriage  that  preceded  the 
birth  ('). 

3.  From  the  benefit  of  legitimacy  must  be  excepted  : 
a)  Such  as  are  clearly  proved  not  to  be  the  hcsband's  children.  with  two 

And  in  fact,  if  the  canon  law  holds  as  legitimate  the  children  ^^'^^^  ^ 
conceived  by,  or  at  least  born  of  a  married  mother,  it  is  only 
because  it  presumes  them,  as  we  have  already  said,  to  be  the 
result  of  lawful  matrimonial  relations,  or  at  least  of  relations  had 
between  parties  who  subsequently  married  before  the  birth  of 
their  offspring  ;  in  which  case  a  legal  fiction  retrospectively 
legitimates  coition  as  far  back  as  the  time  of  conception.  This 
presumption  is  based  on  the  legal  principle  :  is  pater  est  quern  nup- 
tiae  demonstrant  (the  father  is  he  whom  marriage  point  out  as 
such).  But  this  presumption  is  not  inevitable,  and  must  yield  to 
the  ascertained  fact,  since  it  is  not  juris  et  dejure{^). 


I.  Looking  at  the  matter  in  itself,  and  with  due  regard  to  the  provisions  of  the 
law,  there  remains  a  speculative  doubt  as  to  the  legitimacy  of  such  offspring. 
For,  as  Bened.  XIV  says,  in  his  Constit.  Rcdditac  Nobis,  n°  3,  in  the  Parvum 
Bullarium,  III,  «  texts  are  against  texts,  doctors  against  doctors,  and  tribunals 
against  tribunals  ».  But  when  there  is  doubt,  the  children  must  have  the  benefit  of 
it,  and  the  case  be  settled  in  their  favour.  This  is  the  course  followed  without 
hesitation  by  Reiffenst.,  on  tit.  XVII,  no  17  et  ss.  ;  Schmalzgr.,  ibid.,  nos  9 
and  10  ;  and  Bockhn,  ibid.,  n°  10.  At  the  same  time  they  give  the  legal  texts 
on  which  they  rely,  and  references  to  the  authors  that  they  make  use  of. 
Gasparri,  o.  c,  II,  1071,  and  De  Becker,  De  Matr.,  p.  370-371,  lean  to  the 
same  opinion. 

a.  Nevertheless,  since  the  benefit  of  the  doubt  must  be  given  to  the  child  and 
the  marriage,  no  doubtful  argument,  however  probable,  suffices  to  destroy  the 
presumption  in  their  favour.  There  must  be  an  absolutely  convincing  argument, 
at  least  where  the  parties  were  already  married  at  the  time  of  conception  ;  con- 
sequently it  is  not  enough  that  the  mother  has  been  guilty  of  adultery,  or  that 
she  has  acknowledged,  even  on  oath,  that  the  child  was  conceived  in  adultery  ; 
nor  is  it  sufficient  that  the  child  bears  a  greater  resemblance  to  the  adulterer 
than  to  the  husband.  There  must  be  conclusive  proof,  e.g.,  proof  drawn  from 
husband's  absence,  or  from  his  impotence  consequent  on  sickness,  between  the 
300'h  and  the  iSo'h  day  before  the  birth.  Cf.  Schmalzgrueber,  1.  c.  n"s  39-40; 
Reiffenst.,  n^s  10-12;  Gasparri,  o.  c,  n"*  1069  ;  see  also  the  solution  of  the 
case  given  in  the  Acta  S.  Sedis,  XVII,  p.  378  scq. 


276  THE   LEGITIMECY   OF  THE   CHILDREN 

b/  We  must  in  like  manner  except  children  conceived  by  conjugal 
act  of  the  parents,  after  one  of  the  parents,  subsequently  to  a  former 
consummation  of  the  marriage,  has  taken  a  solemn  vow  of  chastity, 
or  has  received  Holy  Orders. 

Children  born  of  such  illicit  intercourse  are  canonically  illegi- 
timate, and  are  consequently  by  the  very  fact  irregular.  This 

is  deduced  from  chapters  i,  14,  X,  I,  17  (*). 
16  a. 
Different         Note.  1.  As  a  logical  consequence  of  what  we  have  said  above, 
classes  of 
ille^iUniaie   illegitimate  children  are  such  as  are  born  of  a  mother  who,neither 

children.  ^^  ^^^  j-jj^g  of  their  conception,  nor  at  the  time  of  their  birth,  nor 
in  the  interval,  had  contracted  a  valid  or  putative  marriage  ;  as 
well  as  such  as  being  born,  indeed,  of  a  married  woman,  are 
nevertheless  proved  not  to  have  been  begotten  by  her  husband, 
and  also  the  children  just  mentioned  on  b/.  Illegitimate  children 
are  : 

a/  Natural,  according  to  Schamalzgrueber,  1.  c,  n°  6,  «  if 
they  are  born  out  of  wedlock,  of  parents  who  might  have  married 
one  another  at  the  time  of  conception,  or  at  the  time  of  birth,  or 
in  the  interval  >. 

b/  Spurii,  «  if  they  are  born  of  parents,  between  whom  marri- 
age did  not  exist,  and  could  not  have  existed  during  any  part  of 
the  time  that  elapsed  between  conception  and  birth  »,  on  account 
of  some  diriment  impediment  {ibid.). 

Among  spurii,  some  are  adulterine,  «  those  born  of  adultery... ; 
others  are  sacrilegious,  those  whose  father  or  mother  is  either  a 
religious,  or  a  cleric  in  major  Orders  (*) ;  others,  again,    are  inces- 


In  practice,  therefore,  when  the  child  01  a  married  woman  is  presented  for 
baptism,  it  must  be  entered  in  the  baptismal  register  as  a  legitimate  child,  even 
if  the  father  or  mother  declare  it  adulterine.  The  only  exception,  as  we  have 
just  said,  is  that  of  the  husband's  absence  or  impotence,  duly  ascertained.  In 
the  case  ofthc  husband's  absence,  the  parish  priest  will  mention  the  fact  in  the 
register,  and  will  certify  that  he  has  baptized  the  child  N...,  born  of  N...,  law- 
ful wife  of  N...,  absent  between  the  300'1»  and  the  180th  day  before  the  birth. 

1.  Cf.  ScHMALZGRUEBER,  o.  c,  on  this  passage,  nos  33-38.  The  case  of  a  dispen- 
sation must  be  excepted. 

2.  As  we  have  just  said,  those  children  ought  also  to  be  considered  sacrile- 
gious who  are  born  of  lawfully  married  parents,  but  of  whom  one  or  the  other, 
after  a  former  consummation  of  the  marriage  and  before  the  conception  of 
the  child  in  question,  has  taken  the  solemn  vows  or  received  Orders. 


THE  LEGITIMACY  OF  THE   CHILDREN  277 

tuous,  namely  those  whose  parents  are  united  with  one  another 
by  affinity  or  by  collateral  consanguinity  ;  others,  in  fine,  are 
known  as  nefarii,  that  is  to  say,  those  that  are  born  as  the  result 
of  intercourse  between  father  and  daughter,  or  between  any 
direct  ascendants  and  descendants  whatever*.  Reiffenstuel, 
1.  c,  n°28. 

2.  Legitimacy,  in  the  ecclesiastical  forum,  implies  competency  for  WhatUgUi- 
the  lawful  reception  of  the  tonsure  and  Orders,  as  well  as  for  '"*^-^  tmplus, 
ecclesiastical  benefices  and  prelacies.  Those  who  are  illegitimate 
are  not  competent  in  this  respect,  in  other  words  they  are  irre- 
gular. 

166. 

Second  proposition.  Natural  illegitimate  children  are  legitimated     Natural 

by  a  subsequent  marriage  contracted  between  their  parents.  UeUimakd" 

The  proof  of  this  proposition  is  found  in  cap.  6,  X,  IV,  17: 
«  The  efficacy  of  marriage  is  such,  thai  its  celebration  causes  the  children 
previously  born  to  be  considered  as  legitimate  ».  In  other  words  : 
€  subsequent  marriage,  by  a  fiction  of  the  law,  is  referred  back  to 
the  time  of  the  child's  birth  or  conception  ;  so  that,  the  antecedent 
defect  being  suppressed,  the  child  is  considered  as  the  issue  of  a 
marriage  then  existing...  This  provision  was  made  in  favour  both 
of  the  children  and  of  the  marriage  :  in  favour  of  the  children,  who 
thus  escape  suffering  for  the  fault  of  another,  and  obtain  the 
rights  of  legitimate  birth  ;  in  favour  of  marriage,  because  parents 
previously  living  in  illicit  intercourse  are  thus  induced  to  marry 
for  the  love  of  their  children  »  ('). 

Explanation. 

We  say  1.  natural  children  ;  for  other  illegitimate  children  do 
not  share  in  this  privilege.  This  is  clearly  established,  as  concerns 


I.  ScHMALZGR.,  On  this  title,  no  49.  The  first  example  of  legitimation  by  subse- 
quent marriage  before  the  Church  is  found  in  cap.  I  of  the  same  title,  attributed  to 
Alexander  III,  who  is  also  the  author  of  cap.  6.  Cf.  Esmbin,  o.  c,  II,  p.  39  s.  ; 
POTHIER,  o.  c,  nos  408  s. 

This  method  of  legitimation  was  borrowed  by  the  Church  from  the  Roman  law, 
which  recognised  in  a  subsequent  legitimate  or  proper  marriage  (justce  nuptia) 
the  power  of  legitimating  children  born,  not  of  any  kind  of  union,  but  only  of 
that  known  to  them  as  concubinatus ;  see  above  no  83.  Cf.  Pothier,  o.  c,  nos  7  s.; 
ViOLLET,  Histoirc  du  droit,  p.  471-473  ;  and  especially  Genestal,  o.  c,  p.  150  s., 
where  may  be  found  the  evolution  of  the  law  set  forth  at  length. 


278  THE  LEGITIMACY   OF  THE   CHILDREN 

adulterme  children,  by  cap.  6,  quoted  above  ('),  and  by  the  Consti- 
tution of  Bened.  XIV.  Redditae  Nobis,  par.  2  ;  and  the  commonly 
accepted  doctrine  deals  with  other  spurii  in  the  same  way.  Cf. 
Reiffenstuel,  on  this  title,  n°  37,  together  with  the  reason  that 
he  gives  (*). 

On  the  other  hand,  all  children,  without  exception,  who  accord- 
ing to  the  definition  that  we  have  given,  come  under  the  head  of 
natural  children,  share  in  the  privilege  ;  not  only  those  whose 
conception  took  place  when  there  was  no  diriment  impediment 
between  the  parents,  but  the  others  also,  provided  the  impediment 
had  disappeared  before  their  birth  (').  The  best  canonists  (*)  maintain 
this  doctrine  in  the  interests  of  the  child  ;  and  the  S.  Penit.  has 
openly  spoken  in  the  like  sense  in  its  recent  reply  of  21  Apr. 
1908,  quoted  in  the  Coll.  Brug.,  t.  XIV,  p.  97  ss. 

There  is,  however,  a  keen  controversy  among  authors  on  the  subject  of 
children  who  are  apparently  natural  but  really  spurii,  such  as  are  born  of 


1.  «  If  a  man,  during  the  lifetime  of  his  wife,  misconducts  himself  with  another 
woman,  and  has  a  child  by  her,  that  child  will  be  spurius,  even  when  the  guilty 
party,  after  the  death  of  his  wife,  has  married  the  mother  ».  At  the  end  of  the 
original  text,  in  the  First  Compilation,  the  following  clause  appeared  :  «  Seeing 
that  a  lawful  marriage  cannot  be  contracted  between  such  persons  ».  See  the 
Friedberg  edition. 

2.  As  we  shall  point  out  in  n"  168,  this  reason  is  :  that  legitimation  is,  by  a  legal 
fiction,  regarded  as  going  back  to  the  birth  ;  or  rather  that  the  subsequent  mar- 
riage is  looked  upon  as  dating  from  the  moment  of  the  birth  ;  it  is  accordingly 
necessary  that  it  should  have  been  capable  of  existence  at  that  time,  and  conse- 
quently that  there  should  not  have  been  any  diriment  impediment  between  the 
parents  at  that  time. 

3.  According  to  Reiffenstuel,  1.  c,  n^s  40-41,  «  if  a  man,  during  the  life  of  his 
wife,  has  intercourse  with  another  woman,  and  his  wife  dies  before  the  other 
woman  gives  birth  to  her  child,  such  child  (as  being  merely  natural)  is  legitimat- 
ed by  subsequent  marriage  between  its  parents  ».  The  same  happens  when  a 
dispensation,  before  the  birth  of  the  child,  removes  any  other  impediment  that  the 
parents  were  under  at  the  moment  0/ conception  ;  the  child  is  born  natural,  and 
may  be  legitimated  by  a  subsequent  marriage. 

4.  ScHMALZGRUEBER,  1.  c,  n°^  63-68,  with  the  authors  quoted;  Reiffenstuel, 
1.  c,  no  39  ;  Sanchez,  De  Matr.,  1.  VIII,  cap.  VII,  p.  19  ;  Barbosa,  on  this  title, 
nos  27  ss. ;  Bockhn,  on  this  title,  cap.  Tanta,  nos  30-31 ;  Ferraris,  Prompta 
Biblioth.,  under  Filius.  nos  23,  32,  39-42.  The  following  are  also  of  the  same 
opinion  :  Fbyb,  De  Imped.,  no  741 ;  Santi,  on  this  title,  no  5  ;  Gasparri,  o.  c, 
no  1123  ;  De  Becker,  De  Matr.,  p.  378  ;  Putzer,  o.  c,  no  120. 


THE   LEGITIMACY   OF  THE   CHILDREN  279 

parents  who  are  under  an  impediment,  that  is,  in  good  faith,  unknown  to 
one  or  the  otker  of  them.  The  opinion  that  denies  such  children  the  benefit 
of  the  privilege  seems  the  better  founded,  at  least  where  it  is  a  question  of 
children  natural  in  appearence,  but  in  reality  adulterine.  This  interpretation 
fits  in  better  with  the  text  of  chapter  6,  and  many  commentators  have 
adopted  it.  A  list  of  them  is  given  by  Schmalzgrueber,  1.  c,  n"  59,  though 
he  himself  holds  the  contrary  opinion  ('). 

We  say  2.  by  the  very  fad  of  a  subsequent  marriage.  By  this  is  to  by  a  subse- 
be  understood  any  lawful  marriage  whatever,  even  one  that  is  *"*'V^'*'^'^*' 
merely  ratitm  el  non  consummaium,  contracted  at  any  time,  even  at 
the  moment  of  death,  and  without  the  antenuptial  proclamations  or 
express  permission  for  their  omission.lt  is  immaterial  whether  the 
marriage  follows  the  birth  of  the  child  immediately  or  media- 
tely ('),  as  Reiffenstuel  clearly  shows,  I.  c,  n"^  30-34. 

It  is,  however,  a  disputed  point  whether  the  same  efficacy  is  to 
be  conceded  to  &  putative  marriage,  i.  e.,  to  one  contracted  inva- 
lidly,  in  good  faith,  before  the  Church,  and  after  the  customar}' 
proclamations  ('). 

We  say  3.  contracted  between  the  parents  of  the  illegitimate  child,    contracted 
On  the  one  hand,  a  marriage  contracted  between  the  parents  legiti-   ''  naUtral^^^ 
mates  at  once  and  fully  the  children  already  born  :  there  is  no     pi^^^nts. 
necessity  for  the  consent  of  any  interested  party,  and  the  Canon 
Law  does  not  require,  as  does  the  Code  Napoleon,  the  express 
recognition  of  the  child  by  its  parents,  either  before  or  during  the 
celebration  of  the  marriage. 

On  the  other  hand,  the  marriage  of  the  mother  with  a  man  other 
than  the  the  father  of  the  child  cannot  in  any  way  legitimate  it. 
Hence,  whenever   this    occurs,  and  the  case  has  been  legally 


1.  Cf.  FfiYE,  De  Imp.,  n"  741  ;  Acta  S.  Sedis,  XXVI,  p.  419-424;  Db  Becker, 
De  Matr.,  p.  378  ;  Putzer,  o.  c,  n^^  119  ss.  ;  Weknz,  o.  c,  IV,  680;  Esmein,  o.c, 
II,  p.  44. 

2.  The  child  is  equally  legitimated  by  the  marriage  of  its  parents,  when  the 
father  first  marries  some  other  woman,  and  then,  after  the  death  of  that  wife, 
marries  the  mother  of  the  child. 

3.  The  negative  opinion  is  maintained  by  Reiffenstuel,  l.c.nos  35-36;BbcKHN, 
1,  c,  no  31  ;  Barbosa,  1.  c,  nos  41-43,  and  others.  The  affirmative  opinion  is  sup- 
ported by  SCHMALMZGRUEBER,  1.  C,  nos  56-58  ;  PiRHING,  OO  thls  title,  HO  39  ,"  FbR- 

RARis,  1.  c,  no  37,  and  the  authors  quoted  by  him  ;  Santi,  1.  c,  n"  9  ;  Feye,  De 
Imp.,  no  741 ;  Putzer,  o  c,  no  130  ;  De  Becker,  De  Matr.,  p.  376. 


2So  THE  LEGITIMACY   OF  THE   CHILDREN 

established  in  the  external  forum,  the  parish  priest  cannot  admit  or 
register  as  legitimate  the  child  in  question  ;  nor  can  he  take  into 
account  either  the  declarations  of  the  mother  and  her  future 
husband,  or  the  legal  acknowledgment  or  legitimation  that  has 
taken  place  in  the  civil  court.  Nevertheless,  so  long  as  there  is  no 
certain  proof  to  the  contrary,  presumption  of  paternity  attaches 
to  the  man  who  marries  the  mother  ;  consequently,  notwithstand- 
ing any  suspicions  he  may  have  as  to  the  truth  of  the  statement, 
the  parish  priest  will  admit  the  declaration  freely  made  to  him  by 
the  contracting  parties,  and  will  enter  in  the  register  the  legitima- 
tion of  the  child  (').  Cf.  Coll.  Brug.,  t.  XI,  p.  726  s.,  where  certain 
observations  may  be  found  as  to  the  method  ot  proving  that  the 

contracting  parties  are  in  fact  the  natural  parents  of  the  child. 
167. 
Spuriimay       Note.  1.  Spurii,  i.  e.,  illegitimate  children  other  than  natural, 

^byVabal     ^^"^  ^^^  legitimated  by  the  marriage   of  their   parents,  but,  with 

rescript.      certain  conditions  and  formalities,    they  can  be  legitimated  per 

RescripUim  Principis,  as  it  is  called  (*),  that  is  to  say,  by  a  rescript 

of  the  Sovereign  Pontiff,  since  the  benefit  of  legitimation  depends, 

in  part  at  least,  on  the  good  will  of  the  Pope.  As  this  rescript  of 

legitimation  finds  its  proper  place  under  the  head  of  matrimonial 

.„         dispensations,  we  refer  the  reader  there. 

Efficacy  of       2.  What  is  the  efficacy  of  legitimation  in  the  ecclesiastical  fo- 
legitimatior,.  ^^^  p 

If  acquired  through  the  subsequent  marriage  of  the  parents,  it 
confers  the  power  of  receiving  Orders,  benefices  and  ecclesiasti- 


I.  The  Pastor.  Brug.,^.  278  and  279,  with  regard  to  this  entry  says  :  «  If  a  child 
born  before  marriage  is  theirs,  the  parish  priest  will  be  careful  to  insert  the  fact 
of  its  legitimation  in  the  record  of  the  marriage,  and  will  add  thereto  the  follow- 
ing words  :  insuper  sponsus  N...  declaravit  filium  sponsae  suae  N...,  natum  die... 
mensis...  anni...,  suam  esse  prolem,  quam  per  matrimonium  Icgitimare  inten- 
dit  ».  In  the  baptismal  register  the  parish  priest  will  also  make  a  marginal  entry 
of  this  legitimation  together  with  a  reference  to  the  marriage  register.  To 
ensure  the  due  observance  of  this  formality,  the  Congr.  Prosynod,  of  the  diocese 
of  Bruges,  1871,  art.  6.  prescribed  :  «  that  if  the  child  was  baptized  in  a  parish 
other  than  that  in  which  the  marriage  takes  place,  written  notice  of  the  legitima- 
tion must  be  sent  to  the  parish  priest  of  the  place  of  baptism  ». 

3.  For  the  origin  of  legitimation  per  rescriptum  Principis  in  the  Roman  and 
in  the  ecclesiastical  law,  see  Wernz,  o.  c,  IV,  n"  680,  iv  ;  Viollet,  Histoire  du 
droit,  p.  473  ss  ;  Genestal,  o.  c,  p.  183  s. 


THE  LEGITIMACY   OF   THE   CHILDREN  281 

cal  dignities,  with  the  sole  exception  of  that  of  the  cardinalate  (') ; 
moreover,  by  a  fiction  of  the  law,  it  is  regarded  as  going  back  to 
the  time  of  birth.  Consequently,  as  Reiffenstuel  says,  on  title 
XVII,  n°  60,  compared  with  n°s  42  and  43,  children  thus  legitimat- 
ed <  are  made  equal  in  everything  with  really  legitimate  children 
(saving  the  exception  made  above) ;  and  are  included  in  all  those 
provisions  of  the  positive  law  which  require  legitimate  birth  (*)  ». 
If,  on  the  contrary,  legitimation  has  been  granted  by  Papal  re- 
script, its  efficacy  may  be  equally  comprehensive  with  that 
acquired  through  subsequent  marriage  ('),  or  it  may  be  more 
limited  in  its  effects  (*). 

3.  In  addition  to  legitimation,  there  are  also  other  means  of 
removing,  at  least  in  part,  the  disabihties  arising  from  illegitimate 
birth.  Thus  solemn  profession,  by  a  provision  of  the  law,  renders 
those  who  are  illegitimate  capable  of  receiving  Orders,  though 
not  the  prelacy  (*)  ;  dispensation  on  its  side  can  produce  the  like 
effect  in  particular  cases. 

4.  There  were  formerly  various  rites  of  legitimation  in  existence  :  a/  Ancient  rites 
sometimes  the  children  to  be  legitimated  were  placed  under  the  cloth         ff^^""^ 
extended  over  their  parents  at  the  time  of  receiving  the  nuptial  blessing, 

to  signify  that  they  were  henceforth  to  be  considered  as  the  issue  of  that 
marriage.  If  we  admit  that  the  cloth  in  question  represented  the  nuptial 
bed,  the  ineaning  is  made  yet  more  clear  («). 


1.  This  exception  was  introduced  by  Sixtus  V,  in  the  Constitution  Postquam, 
of  3  Dec.  1586,  §  12. 

2.  Cf.  ScHMALZGR.,  on  title  XVII,  nos  82,  94  ss.  ;  Ferraris,  Prompta  Biblioth., 
under  Filius,  xx°  43  s. 

3.  For  example  in  a  sanatio  in  radicc  the  legitimation  of  the  children  is  ordina- 
rily retrospective,  and  goes  back  to  the  moment  of  birth. 

4.  We  have  been  speaking  of  the  efficscy  of  legitimation  in  the  ecclesiastical 
forum.  In  the  Belgian  civil  law,  in  virtue  of  art.  333,  <  les  enfants  legitimes  par 
le  mariage  subsequent  auront  les  memes  droits  que  s'ils  etaient  nes  de  ce  mana- 
ge ».  It  would  seem  that  the  Pope  could  not,  except  in  extraordinary  cases  and 
by  making  use  of  his  indirect  power,  cause  to  be  attributed  to  canonical  legiti- 
mation an  efficacy  bringing  with  it  civil  effects,  i.  e.,  cause  to  be  recognised  as 
legitimate  in  civil  law,  illegitimate  children  legitimated  in  virtue  of  a  rescript 
or  special  canonical  provision.  See  cap.  13,  X,  IV,  17,  and  compare  with  Wernz, 
o.  c,  IV,  no  687  ;  De  Becker,  De  Matr.,  p.  406  s. 

5.  Cf.  Genbstal,  o.  c,  p.  80  s. 

6.  Cf.  Kogler,  o.  c.  p.  55-64  ;  see  also  above,  no  133. 


282  THE  LEGITIMACY   OF   THE   CHILDREN 

b/  Or  again,  at  the  time  of  the  celebration  of  the  marriage,  the  father  or 
mother  covered  the  child  with  his  or  her  cloak.  This  second  ceremony  was 
borrowed  from  the  ancient  Roman  rite  of  adoption  (*). 

c/  Finally  there  were,  here  and  there,  yet  other  ceremonies  in  use  :  for 
example,  during  the  celebration  of  the  marriage  the  children  were  bound 
to  the  parents  by  a  girdle  or  cord,  or  placed  on  the  knees  or  in  the  lap  of  the 
mother  (*). 

Scholion  I.  Civil  legrislation. 
170. 

Civil  By  the  Code  Napoleon  1.  the  following  are  considered  as  legitimate: 

Ugtslatwn.  ^j  ^11  children  conceived  during  the  marriage  ;  that  is  to  say,  born  after 
the  i8o"^  day  after  the  celebration  of  the  marriage,  and  before  the  300*** 
day  after  its  dissolution  (^),  whether  the  marriage  be  valid  or  putative  («). 

Nevertheless,  the  husband  has  the  right  of  disowning  a  child,  so  as  to 
render  it  illegitimate,  when  it  is  physically  certain  that  it  is  not  his,  that  is 
to  say,  if  he  can  prove  :  «  que  pendant  le  temps  qui  a  couru  depuis  le  trois- 
centieme  jusqu'au  cent  quatre-vingtieme  jour  avant  la  naissance  de  cet 
enfant,  il  etait,  soit  pour  cause  d'eloignement,  soit  par  I'effet  de  quelque 


1.  KoGLER,  o.  c  ,  p.  64-70,  is  at  pains  to  show  that  this  symbolical  ceremony 
signifies  that  the  child  is  born  of  those  parents.  He  also  finds  the  same  significa- 
tion in  the  rite  of  adoption,  which  according  to  him  denotes  between  adopter  and 
adopted  the  relations  of  natural  paternity.  The  ceremony  of  the  cloak  caused 
children  thus  legitimated  by  subsequent  marriage  to  be  known  SiS  filii  mantellati 
{mantelkinders,  enfants  de  manteau). 

2.  The  same,  p.  77  s. 

3.  300  days  correspond  to  a  space  of  10  months,  and  180  to  that  of  6  months, 
according  to  the  method  of  reckoning  at  the  time  of  the  drawing  up  of  our  (the 
Belgian)  civil  Code.  The  German  code  fixes  as  the  extreme  limits  the  303"'^  and 
the  iSi^t  day. 

Observe  that  in  order  to  establish  the  legitimacy  of  the  child,  according  to  the 
rule  given,  it  is  necessary  first  to  establish  i\s  filiation.  But  the  filiation  of  a 
legitimate  child  is  proved,  according  to  articles  319  and  320,  «  par  les  actes  de 
naissance  inscrits  sur  les  registres  de  I'^tat  civil  »  and,  «  a  defaut  de  ce  titre,  la 
possession  constante  de  I'^tat  d'enfant  legitime  sufiit  »  ;  see  also  the  following 
articles,  and  Planiol,  o.  c,  I,  nos  1384-1410. 

4.  Articles  201  and  202.  Pl  putative  marriage,  in  the  eyes  of  the  Code  Napoleon, 
is  one  that  both  parties,  or  one  of  them  at  least,  contracted  in  good  faith,  and 
that  has  been  subsequently  annulled  on  account  of  some  essential  defect. 

In  the  case  of  a  putative  marriage,  the  children  are  held  to  be  legitimate,  and 
are  regarded  by  the  civil  code  as  legal  heirs,  even  in  respect  of  the  party  who  was 
not  in  good  faith.  See  the  decision  of  the  Court  of  Cassation  of  Paris,  of  5  Jan. 
i9io{in  Pasicrisie,  igto,  IV,  p.  i6i).  Cf.  Thiry,  o.  c,  no  303 ;  decision  of  the  Court 
of  Brussels,  Pasicrisie,  1912,  II,  p.  57  ss. 


THE  LEGITIMACY   OF   THE  CHILDREN  283 

accident  dans  rimpossibilite  physique  de  cohabiter  avec  sa  femme  »  ('). 
b/  Children  born  in  wedlock,  though  conceived  before  the  marriage.  For, 
they  are  then  presumed  to  be  the  issue  of  the  marriage,  according  to  the 
legal  saying  likewise  admitted  in  the  ecclesiastical  law  :  is  pater  est  quern 
niiptiae  demojtstrant ;  see  above,  n°  163.  Nevertheless,  the  husband  may 
disown  such  children,  merely  by  a  simple  declaration  of  non-paternity,  if 
they  were  born  before  the  180"^  day  following  the  matrimonial  contract, 
except  in  the  three  hypotheses  mentioned  in  art.  314,  viz.,  «  s'il  a  eu  con- 
naissance  de  la  grossesse  avant  le  mariage  ;  s'il  a  assiste  a  I'acte  de  naissan- 
ce,  et  si  cet  acte  est  signe  de  lui  ou  contient  sa  declaration  qu'il  ne  salt  pas 
signer  ;  si  I'enfant  n'est  pas  declare  viable  ».  See  Planiol,  o.  c,  I,  n°*  1417 
s.,  n.  1559,  n°^  1429  and  1439. 

2.  All  children  not  included  in  one  or  other  of  the  two  classes  mentioned 
above  are  considered  as  illegitimate.  Consequent  on  the  condition  of  their 
respective  parents,  some  are  called  simply  natural,  viz.,  those  whose 
parents,  at  the  time  of  the  legal  conception,  were  not  prevented  by  any 
diriment  impediment  from  marrying  one  another ;  while  others  are  known 
as  incestuous  or  adulterine,  according  as  their  parents,  at  the  time  of  legal 
conception,  were  related  with  one  another  within  the  prohibited  degrees 
and  undispensed,  or  one  or  the  other  of  them  was  at  that  time  married  to 
some  person  other  than  the  father  or  mother  of  the  child.  See  above  n°  149. 

3.  Illegitimate  but  natural  children  (to  the  exclusion  of  adulterine  or 


I.  Art.  312.  Cf.  also  art.  313,  which  provides  that  the  husband  may,  in  a  case  of 
adultery  and  when  the  birth  of  the  child  has  been  concealed  from  him,  disown 
it,  even  though  he  can  only  invoke  a  moral  impossibility  in  support  of  his  non- 
paternity. Cf.  Planiol,  o.  c,  I,  nos  1435  s.  ;  decision  of  the  Cour  de  Gand,  3  Jan. 
1908,  Pasicrisie,  1909,  II,  p.  371  ss. 

The  Belgian  Senate,  in  its  session  of  16  March  1911,  voted  the  draft  of  a  law, 
due  to  the  initiative  of  M.  Alex.  Braun,  which  will  probably  be  adopted  by  the 
Chamber  and  sanctioned  by  the  King.  The  following  clause  would  then  be  added 
to  art.  313  :  «  En  cas  de  jugement  ou  meme  de  demande  en  divorce  ou  en  separa- 
tion de  corps,  le  mari  pourra  d^savouer  I'enfant  ne  trois  cent  jours  apres  la  deci- 
sion qui  aura  autorise  la  femme  k  avoir  un  domicile  s^par6  et  moins  de  cent 
quatre-vingt  jours  depuis  le  rejet  definitif  de  la  demande  ou  depuis  la  reconcilia- 
tion. L'action  en  desaveu  ne  sera  pas  admise  si  la  femme  prouve  qu'il  y  a  eu 
reunion  dc  fait  entre  les  deux  epoux  ».  Annates  Parlementaires,  Senat,  Seance  du 
16  mars  191 1,  p.  244  ;  cf.  Collat.  Briig.,  XI,  p.  329  s.  See  also  Coulon,  Le  Divorce 
et  la  Separation  p.  379,  where  may  be  found  the  text  of  the  French  law  of  6  Dec. 
1850,  modifying  in  the  same  sense  art.  313  of  the  civil  code  ;  the  only  difference 
being,  that  the  text  adopted  by  the  Belgian  Senate  expressly  lays  on  the  wife  the 
burden  of  proof  of  the  circumstances  alleged  by  her  against  the  legal  presump- 
tions. 


284  THE  LEGITIMACY   OF  THE   CHILDREN 

incestuous  children)  ('),  can  bg  legitimated  (2)  «  par  le  mariage  subsequent 
de  leur  pere  et  mere,  lorsque  ceux-ci  les  auront  legalement  reconnus  avant 
leur  mariage,  ou  qu'ils  les  reconnaitront  dans  I'acte  meme  de  celebration  ». 
Art.  331  of  the  civil  code  ('). 

Observe  that  such  children  are  not  legitimated  by  the  mere  fact  of  the 
subsequent  marriage,  but  only  when  legally  acknowledged  by  their  parents 
either  before  their  marriage,  or  in  the  act  of  its  celebration  (*). 

Moreover,  and  this  must  be  carefully  noted,  our  (i.  e.  the  Belgian)  civil 
law,  like  the  canon  law,  requires  that  the  subsequent  marriage  should  be 
between  the  natural  parents  of  the  child  to  be  legitimated.  Thus  the  civil 
officer  commits  a  grave  offence  if,  as  sometimes  happens,  he  urges  the 


I.  In  virtue  of  the  law  of  8  Apr.  1908,  art.  343b  of  the  civil  code,  the  exception 
made  against  incestuous  children  does  not  apply  to  children  «  nes  de  personnes 
parentes  ou  alli^es,  entre  lesquelles  le  mariage  pouvait  etre  autorise  par  dis- 
pense ».  See  also  Caron,  o.  c,  p.  335-242,  and  p.  262  ;  likewise  Planiol.,  o.  c., 
I,  no  1553,  who  quotes  with  disapproval  the  change  introduced  by  the  law  of 
7  Nov.  1907  into  the  French  law,  in  favour  of  adulterine  children.  Henceforth 
such  children  can,  under  certain  circumstances,  be  legitimated  by  subsequent 
marriage.  See  also  Naqubt,  Vers  I'union  libre,  p.  270  ss.  who  speaks  of  a 
movement  in  favour  of  the  suppression  of  the  restrictions  imposed  by  the  law. 

3.  Legitimated  children  enjoy,  before  the  law,  the  same  advantages  as  legiti- 
mate children,  but  only  from  the  time  of  the  celebration  of  the  marriage.  Art. 
333.  See  also  no  168,  above. 

Natural  children  legally  acknowledged,  but  not  legitimated,  cannot  «  reclamer 
les  droits  d'enfants  legitimes  »,  art.  338.  Acknowledgment  proves  the  status  of 
natural  child  in  relation  to  a  determinate  person  ;  it  does  not  change  that  status. 

Observe  also  that  legitimation  may  be  granted.in  virtue  of  art.  333, «  en  faveur 
des  enfants  decedes,  qui  ont  laisse  des  descendants,  et  dans  ce  cas,  elle  profite  k 
ces  descendants  ». 

3.  Legitimation  by  subsequent  marriage  is,  at  present,  the  only  legitimation 
possible  in  civil  law.  The  Rescriptiim  Principis  has  disappeared  from  our  legis- 
lation, though  formerly  in  use,  as  we  have  remarked,  referring  our  readers  to 
ViOLLET,  Histoire  dti  droit,  p.  473  ss.  ;  cf.  Planiol,  o.  c,  I,  nos  1550  s. 

4.  This  acknowledgment,  according  to  the  provisions  of  art.  331,  must  be  made 
before  the  marriage,  or  at  least  in  the  act  of  its  celebration.  «  La  reconnaissan- 
ce faite  posterieurement  a  la  celebration  du  mariage  n'entraine  pas  la  legitima- 
tion. —  Le  legislateur  a  craint  que  la  reconnaissance  posterieure  ne  soit  pas 
I'expression  de  la  verity  ».  Tribunal  de  Louvain,  32  June  1910,  in  Pasicrisie,  1910, 
III,  p.  243  s. ;  Cour  de  Cbamb^ry  18  Dec.  igii,  in  Pasicrisie,  1912,  IV,  p.  63.  On 
the  other  hand,  acknowledgment,  made  in  conformity  with  the  law,  holds  good 
against  him  who  made  it  until  it  is  proved  to  be  false,  by  evidence  showing  that 
the  false  avowal  of  paternity  was  due  to  error,  deceit  or  violence.  Decision  of  the 
Court  of  Appeal  of  Brussels,  33  Nov.  1910,  in  the  Pasicrisie,  1911,  II,  p.  341. 


THE  UNITY  OF  MARRIAGE 


285 


prospective  husband  to  acknowledge  as  his  own  a  child  that  his  intended 
wife  has  previously  had  by  another  man  (').  The  priest  should  be  careful  not 
to  imitate  such  conduct,  and  should  follow  tlie  canonical  rules  laid  down  for 
the  entering  of  legitimations  in  the  register  of  marriages  and  of  baptisms  (*). 
The  common  opinion  of  lawyers  is,  that  children  born  before  marriage 
may  also  be  legitimated  by  a  putative  marriage,  though  this  seems  contrary 
to  the  tenor  of  articles  201  and  202  :  this  latter  article  speaks  of  children 
«  issus  du  mariage  ».  See  Planiol,  o.  c,  I,  n°  1109  ;  Thiry,  o.  c,  n°  304 ; 
Carteron,  o.  c,  who  treats  at  length  of  putative  marriage  and  its  effects. 

Scholion  II.  The  Roman  La^v. 

In  the  ancient  Roman  law,  marriage  was  not  the  sole  source  of  legitimacy,   Roman  law, 
as  in  the  canon  and  modern  civil  law  ;  the  paterfamilias  had  the  power  of 
disowning  his  children,  and  of  substituting  others  not  connected  with  him 
by  birth  in  their  place,  by  means  of  adoption  ('). 


171. 


Chapter  III. 


PROPERTIES  OF  THE  CONJUGAL  BOND. 

Article  1.  Unity  of  the  conjugal  bond. 

Preliminary  observations.  1.  To  the  unity  of  marriage  is  oppos- 
ed polygamy.  Polygamy,  in  the  etymological  sense  of  the  word, 
comprises  the  state  of  a  man  who  has  several  wives  (polygyny), 


I,  It  also  happens  that  the  prospective  husband,  with  a  view  to  rehabilitating 
his  future  wife,  acknowledges  as  his  own  a  child  that  she  has  previously  had  by 
another  man.  But  when  the  future  husband  and  wife  freely  declare,  and  without 
constraint  recognise  as  the  offspring  of  their  intercourse  a  child  to  whom  the 
future  wife  has  previously  given  birth,  it  is  no  part  of  the  civil  officer's  duty  to 
refuse  to  register  their  declaration,  even  though  he  has  good  reason  to  believe  it 
to  be  untrue.  But  such  acknowledgment  can,  by  the  terms  of  art.  339  of  the  civil 
code,  be  contested  by  all  who  have  an  interest  therein.  See  on  this  subject  the 
Revue  d' Administration  et  de  Droit  administratif,  1908  (t.  55),  p.  341  ss.,  where 
is  reported  a  consultation  on  this  question,  sent  to  the  authorities  at  Brussels  by 
the  civil  officer  of  that  city. 

3.  See  Coll.  Brug.,  t.  VI,  p.  122  ;  XI,  p.  726  s. ;  XII,  p.  766  s. ;  cf.  also,  Archiv.  f. 
k.  K.,  igio,  p.  161  s.,  which  states  that  in  Austria  a  law  has  recently  been  passed 
to  restrain  this  abuse  still  existing  there. 

3.  «  Le  paterfamilias  pouvait  exclure  de  sa  domus  ses  enfants  ou  ses  petits- 
enfants  ex  nuptiis,  les  depouiller  meme  de  toute  agnatic  ;  d'autre  part,  il  pouvait 
introduire  dans  sa  domus  et  au  meme  titre,  avec  pleine  agnatio,  des  enfants  de 
provenance  6trangere,  par  I'adoption  ».  Lefebvre,  o.  c,  p.  59. 


172. 

To  the  unity 
of  marriage 
are  opposed 
tJu  various 
kinds  of 
polygamy. 


286  THE  UNITY   OF  MARRIAGE 

and  also  the  contrary  state,  namely,  that  of  a  woman  who  has 
several  husbands  (polyandry). 

Polygamy  is   successive  or  simultaneous.   Successive  polygamy 

is  rather  called  bigamy  (')  or  digamy,  trigamy,  tetragamy  and  so 

forth. 

Outline  of       2.  The  question  with  which  we  are  at  present  occupied,  and 

^of  natural    ^^^^  ^^^  ^^^  that  follows,  are  dependent  on  certain  principles  of 

law.        natural  law,  which  we  will  briefly  recapitulate. 

The  precepts  of  the  natural  law  are  divided  into  primary  and 
secondary  precepts.  In  opposition  to  i\\Q  primary  precepts  of  the 
natural  law  are  :  firstly,  acts  directly  opposed  to  the  last  end, 
such  as  destroy  the  relations  that  ought  to  exist  between  man  and 
God  ;  secondly,  those  acts  which  tend  to  undermine  the  very  foun- 
dations of  society,  and  so,  of  their  nature,  overturn  the  relations 
that  are  essential  between  men,  and  necessary  for  the  common 
welfare.  Opposed  to  the  secondary  precepts  are  those  acts  which 
do  not  tend  to  destroy  the  established  order,  but  are  of  a  nature 
to  injure  or  thwart  it  in  the  generality  of  cases.  According  as  they 
are  really  injurious  to  it,  or  merely  less  favourable,  such  acts  are 
forbidden,  or  simply  discountenanced  by  the  natural  (secondary) 
law  (*). 

We  say  forbidden,  viz,  it  is  true  that  what  is  contrary  to  the 
secondary  precepts  is  not  injurious  to  the  social  order,  except  in 
the  generality  of  cases,  and  may  per  accidens  and  exceptionally  fit  in 
with  the  general  good  (^) ;  nevertheless,  this  does  not  prevent  it 
from  being  forbidden  by  the  natural  law  ;  for  the  law  considers 
things  in  their  generality,  in  that  which  is  per  se.  Cf.  St.  Thomas, 
C.  Gent.,  1.  Ill,  c.  122. 

1.  In  French  (and  also  in  English,  Tr.),  the  word  bigamy  denotes  the  condition 
of  a  man  having  two  or  more  wives  at  the  same  time. 

2.  Cf.  St.  Thomas,  Supplementum,  qu.  LXV,  art.  i ;  Palmieri,  o.  c,  p.  in,  117 
and  119. 

3.  St.  Thomas,  Supplem.,  qu.  LXV,  art.  2,  speaking  of  what  is  contrary  to  the 
secundary  natural  law,  i.  e.,  «  contra  legem  naturae,  non  quantum  ad  prima 
Draecepta  ejus,  sed  quantum  ad  secunda,  quae  quasi  conclusiones  a  primis 
pnncipiis  derivantur  »,  expresses  himself  as  follows  :  «  Sed  quia  actus  humanos 
variari  oportet  secundum  diversas  conditiones  personarum,  et  temporum,  et 
aliarum  circumstantiarum,  ideo  conclusiones  praedictae  a  primis  legis  naturae 
praeceptis  non  procedunt,  ut  semper  efficaciam  habentes,  sed  in  majori parte ;  et 
ideo  ubi  eorum  efficacia  deficit,  licite  ea  praetermitti  possunt  >, 


THE  UNITY  OP  MARRIAGE  2S7 

Now,  a/  To  permit  an  action  opposed  to  the  primary  precepts  of 
the  natural  law,  is  not  in  the  power  of  anyone,  not  even  of  God, 
at  least  by  way  of  a  general  measure  (').  For  the  Creator  himself 
cannot  undermine  the  order  established  by  Him. 

b/  To  peiTnit  an  action  contrary  to  the  secondary  precepts  of  the 
natural  law,  is  in  the  power  of  God,  even  by  way  of  a  general 
measure,  but  not  in  the  power  of  man.  God  alone  can  do  that.  It 
belongs  to  Him,  and  to  Him  alone,  to  dispense  from  the  law  that 
He  has  made,  and  to  determine  the  cases  in  which,  per  accidens  the 
law  admits  of  derogation  (*).  He  can  give  this  dispensation  either 
directly,  without  an  intermediate  agent,  or  mediately,  through  the 
agency  of  the  Church,  at  least  where  it  is  a  question  of  obligations 
incurred  through  the  act  of  man  (').He  can  then  communicate  His 


1.  We  say,  at  least  not  by  a  general  measure.  For  St.  Thomas  teaches,  Suppl.^ 
q.  LXVII,  a.  3,  that  «  it  is  in  the  power  of  God  to  dispense  even  from  the  pri- 
mary precepts  of  the  natural  law...  but  such  dispensations  are  not  given  to  all  in 
general,  but  rather  to  individuals,  in  a  way  analogous  to  that  which  is  exempli- 
fied in  the  matter  of  miracles  ». 

Billot,  De  Ecclesiae  Sacravientis,  1896,  II,  p.  386,  explaining  this  doctrine, 
distinguishes  both  kinds  of  primary  precepts  of  the  natural  law  :  «  There  is  in 
the  first  place  all  what  is  in  direct  and  immediate  contradiction  to  the  last  end, 
all  that  which  is  directly  and  immediately  opposed  to  God.  For  these  God  him- 
self can  give  no  dispensation,  not  even  in  virtue  of  His  absolute  power...  In  the 
second  place,  there  are  those  acts  which  are  forbidden  because  they  are  natu- 
rally destructive  of  the  general  good,  of  the  social  order,  and  on  that  account 
are  in  mediate  opposition  to  the  last  end,  since  that  cannot  be  attained  otherwise 
than  by  means  of  human  society.  For  those  acts  it  is  evident  also  that  they 
admit  of  no  general  dispensation,  granted  to  a  whole  community,  so  as  to  be 
regarded  as  an  ordinary  privilege...  ;  nevertheless  there  is  no  reason  why  in  a 
particular  and  altogether  exuptional  case  those  acts  should  not  be  withdrawn 
by  a  divine  disposition  from  their  natural  condition,  according  to  which  they 
are  contrary  to  the  last  end,  so  as  to  tend  to  God  in  a  higher  and,  so  to  speak, 
miraculous  manner,  outside  of  the  order  of  second  causes  ». 

2.  St.  Thomas,  S'm/)^/.,  1.  c.  continues  his  argument  in  these  words:  «  Sed 
quia  non  est  facile  determinare  hujusmodi  varietates  (personarum,  temporum...), 
ideo  illi,  ex  cujus  auctoritate  lex  efficaciam  habet,  reservatur  ut  licentiam  prae- 
beat  legem  praetermittendi  in  illis  casibus,  ad  quos  legis  efficacia  non  extendere 
se  debet,  et  talis  licentia  dispensatio  dicitur  >  ;  and  he  further  adds  that  the 
natural  law  «  non  est  humanitus  sed  divinitus  instituta  >,  and  «  ideo  in  hoc  a 
solo  Deo  dispensatio  fieri  potest  ». 

3.  Cf.  Billot,  o.  c,  II,  p.  402  s.,  who  very  appropriately  distinguishes  the 
twofold  power  exercised  by  the  Church,  and  at  the  same  time  gives  the  reason  of 


288  THE  UNITY  OF  MARRIAGE 

power  in  part  to  the  Church,  which  exercises  it,  not  in  its  own 
name,  for  it  is  but  a  ministerial  or  instrumental  power  in  its  hands, 
but  in  name  and  by  the  authority  of  God,  who  is  the  real  holder  of 
the  power  (*). 

First  proposition.  Successive  polygamy  has  never  been  condemned 
either  by  the  divine  law,  or  by  the  common  law  of  the  Church  ;  though 
regarded  as  a  less  praiseworthy  state. 

Explanation  and  demonstration. 
173. 

Successive        A.  No  argument  can  be  advanced  to  prove  the  establishment 

Mwrhem    of  ^he  prohibition   by  divine  law^  ;  and  though   some  Oriental 
prohibited,    writers  have  affirmed  the   contrary   (*),  their  assertion  has  no 
foundation  in  fact. 

B.  Let  us  now  consider  the  ecclesiastical  lav/  : 
1.  It  is  beyond  doubt  that  from  the  objective  and  absolute  point 
of  view,  the  Church  has  never  favoured  remarriages,   and  has 
always  regarded  successive  polygamy  as  an  imperfect  state,  gene- 


expediency  that  arms  the  Church  with  a  certain  authority  to  remove  several 
obligations  of  the  divine  and  natural  law,  viz.,  such  as  arise  from  human  acts  : 
«  There  are  obligations  imposed  by  God,  as  the  Author  of  nature  or  of  grace, 
independently  oj  all  deliberation  on  the  part  oj  the  human  will ;  and  there  are 
others  that  are  established  only  in  consequence  of  the  act  of  man  and  of  the 
determination  of  his  free  will,  as  is  apparent  in  the  case  of  a  vow,  an  oath  and  so 
forth.  Now,  between  these  two  kinds  of  obligation  there  is  an  evident  difference 
as  regards  the  point  with  which  we  are  concerned.  For  man,  in  his  decisions, 
is  incapable  of  examining  beforehand  and  foreseeing  all  the  circumstances  in 
which  it  may  become  inexpedient  or  less  advantageous  to  accomplish  what  he 
has  promised  by  vow,  or  even  sworn,  or  sanctioned  by  contract.  This  is  why, 
for  the  good  of  Christian  society,  in  cases  of  this  kind,  a  dispensation  can 
sometimes  be  given  by  the  Vicars  of  Christ,  as  particular  occasions-arise.  But 
the  above  reason  does  not  apply  to  those  obligations  which  have  their  founda. 
tion  in  the  divine  will  alone,  since  the  Providence  of  God  foresees  everything 
and  leaves  nothing  to  chance  ;  there  can  then  be  no  question  of  remedying  the 
want  of  human  foresight  ».  Cf.  St.  Thomas,  a*  ;?ae,  qu.  LXXXVIII,  a.  lo,  ad  o,^. 

1.  SuAREZ  proposes  a  different  explanation  in  his  treatise  De  Legibus  et  Deo 
Legislatore,  t.  II,  p.  15,  and  many  authors  agree  with  him.  Cf.  Esser,  o.  c,  p. 
35-49,  who  compares  these  divergent  solutions. 

2.  Thus  Nicholas,  Patriarch  of  Constantinople,  in  the  controversy  of  Leo  VI, 
maintains  that  fourth  marriages  are  contrary  to  the  divine  law.  Cf.  Jungmann, 
Dissert,  in  hist,  eccl.,  Ratisbonae,  1884,  IV,  p.  135  s. 


TllE  UNITY   OF  MARRIAGE  289 

rally  indicating  a  want  of  continency  ('),  and  less  perfectly  repre- 
senting the  one  union  of  Christ  with  the  Church,  His  one  spouse. 
Add  to  this  that  second  marriages  are  often  injurious  to  the  child- 
ren by  the  first  marriage,  as  well  as  to  the  peace  of  families. 

The  mark  of  imperfection  attaching  to  remarriages,  and  parti- 
cularly the  suspicion  of  incontinence  to  which  they  give  rise,  are 
the  principal  reasons  why  the  Fathers  have  judged  so  severely 
second,  and  still  more  third  and  fourth  marriages  (*).  Thence  came 
also  the  penance  that  it  was  formerly  the  custom  to  impose  on 
those  who  married  again  ('),  and  the  prohibition  forbidding 
priests  to  be  present  at  the  festivities  of  a  second  marriage  (*)  ; 
for  the  same  reason  such  unions  were  not  solemnly  blessed  ("), 
and  those  who  had  contracted  them  were  debarred  from 
Orders  ("), 

Nevertheless,  2.  the  common  ecclesiastical  law  has  never  made  at  least  by 
2i\\y  prohibition  strictly  so  called  in  this  regard.  And,  in  fact,  St.  ^^e common 
Paul,  in  his  first  epistle  to  the  Corinthians,  VII,  39,   says  :   «  A 


I.  Clement  of  Alexandria,  Strom.,  1.  Ill,  c.  t?.  {Mtgne.  VIII,  col,  1183) :  «  If  the 
Apostle  permits  second  marriages  to  those  who  are  consumed  by  the  heat  of  pas- 
sion... such  persons  certainly  do  not  follow  the  maxim  of  lofty  perfection  of  life 
proposed  in  the  Gospel  ». 

3.  It  is  in  this  sense  that  St.  Gregory  of  Nazianzum,  Oratio  XXXVII,  n.  8, 
whose  words  must,  however,  be  taken  with  a  grain  of  salt,  says  :  «  The  first 
(marriage)  is  the  law,  the  second  a  condescension  to  weakness,  the  third  an 
iniquity,  and  anyone  who  goes  beyond  that  is  plainly  hoggish  ».  Migne,  XXXVI, 
col.  291.  In  like  manner  St.  Basil,  Letter  188  (is'  of  the  canonical  letters), 
declares  that  third  marriages  deserve  not  the  name  of  marriage,  but  that  of 
polygamy,  or  rather  «  regularised  fornication  (moderatam  fornicationem)  ». 
Migne,  XXXII,  col.  674.  The  Fathers  were,  moreover,  careful  to  add,  against 
remarriages,  the  argument  drawn  from  the  welfare  of  the  children  and  the 
peace  of  families.  Cf.  Chardon,  o.  c,  p.  185  s. 

3.  Ch.  8,  C.  XXXI,  q.  I :  «  A  temporary  public  penance  was  imposed  on  such 
as  remarried  frequently  ». 

4.  Ibid.  :  «  The  priest  must  not  be  present  at  the  festivities  of  second  marri- 
ages, especially  as  it  is  then  the  rule  to  impose  a  penance  ». 

5.  See  above,  no  122,  and  Martene,  o.  c,  I.  I,  P.  2,  ch.  IX,  art.  I,  no  7.  Cf. 
Castan,  o.  c,  who  remarks  that  in  France,  under  the  ancient  regime,  the  people 
themselves  were  opposed  to  second  marriages,  and  sometimes  demonstrated 
against  them  v.'ith  rough  music.  See  also  the  Conferences  de  Paris,  III,  p.  94. 

6.  De  Braband3re-Van  Coillie,  o.  c,  II,  n.  1503. 

19 


^90  THE  UNITY   OP   MARRIAGE 

woman  is  bound  by  the  law  as  long  as  her  husband  liveth  :  but 
if  her  husband  die,  she  is  at  liberty  ;  let  her  marry  to  whom  she 
will  »  ;  and  he  repeats  this  in  his  epistle  to  the  Romans,  VII,  2,  3. 
At  the  Council  of  Florence,  in  the  decree  for  the  Armenians, 
Eugenius  /F expresses  himself  thus  :  «  We  declare  that  not  only 
second,  but  third  and  fourth  and  subsequent  marriages  can  be 
lawfully  contracted,  if  there  be  no  impediment  thereto  ».  In  like 
manner,  Hermas  ('),  St.  Ambrose  (*),  St.  Jerome  ('),  St.  Augus- 
tine (*),  and  other  Fathers  (^),  neither  commend  nor  condemn 
second  marriages. 

But  beyond  this,  it  has  often  even  happened  that  the  Church 
has  recommended  second  marriages,  not  objectively  and  absolute- 
ly speaking,  but  as  a  remedy  for  incontinence.  Thus  we  read  in 
the  Instr.  of  the  S.  C.  de  P.  F.,  of  8  Sept.  1869  :  «  Their  Eminen- 
ces... have  enjoined  the  missionaries  to  tell  the  faithful  that  such 
(second)  marriages  are  not  disapproved  of  by  the  ecclesiastical 
law,  provided  there  is  no  impediment  ;  widows  should  therefore 
be  advised  to  marry  again,  if  there  is  danger  of  incontinence  »  (*). 

Such  is  the  commoti  law ;  but  if  we  turn  to  the  local  law,  especially 
in  the  East,  we  find  that  there  has  sometimes  been  excessive  seve- 
rity, as  is  exemplified  by  the  well  known  controversy  about  the 
fourth  marriage  of  the  Emperor  Leo.  See  Palmieri,  o.  c.,p.  102  ss.; 
Vering,  o.  c,  p.  914  ('). 

Second  proposition.  Simultaneous  polygamy  ts  forbidden  by  the 
natural  law  in  the  following  way  :  polyandria  is  opposed  to  the  primary 
precepts  of  the  law,  and  polygyny  to  its  secondary  precepts  only. 


1.  «  Die,  si  vir  vel  tnulier  alicujus  decesserit,  ut  pupserit  aliquis  eorum,  num- 
quid  peccat  ?  Qui  nubit  non  peccat  ».  Mandatum,  IV,  n"  4.  (Ed.  Funk). 

2.  «  Non  prohibemus  secundas  nuptias,  sed  non  probamus  saepe  rcpetitas  ». 
De  Viduis,  c.  11 ;  Migne,  XVI,  col.  254. 

3.  «  Non  damno  digamos  et  trigamos,  et  si  dici  potest,  octogamos  >.  Ep.  48  ad 
Pammachium,  n°  9  ;  Migne,  XXII,  col.  499. 

4.  «  De  tertiis  ct  quartis  et  de  ultra  pluribus  nuptiis  solent  homines  movere 
quaestionem.  Unde  et  breviter  respondeam  :  nee  ullas  nuptias  audeo  damnare  ». 
De  Bono  Vid.,  c.  12  ;  Migne,  XL,  col.  439. 

5.  Cf.  PascH,  o.  c,  VII,  no  858  ;  Palmieri,  o.  c,  p.  98  s. 

6.  Collectanea,  x\°  1378,  and  compare  with  n"  1377. 

7.  In  Russia,  under  the  influence  of  the  orthodox  Church,  the  existing  civil  law 
still  forbids  fourth  marriages.  Cf.  Castan,  0.  e.,  p.  16  s. 


THE  UNITY   OP  MARRIAGE  291 

Explanation  and  demonstration. 

i74. 

I.  Simultaneous  polyandria  (')  is  in  opposition  to  the  primary    Polyandria 

precepts  of  the  natural  law.  The  reason  of  this  is  that  it  is  destruc-  '^^^y*/^'^*" 
tive  of  the  essential  economy  of  marriage,  and  consequently  tends  Primary 
to  undermine  the  foundations  of  society,  which  is  based  upon 
marriage  and  the  family.  Simultaneous  polyandria  destroys  marri- 
age, inasmuch  as  it  renders  its  primary  end  unattainable  ;  for, 
though  such  a  union  may  lead  to  the  birth  of  children  (less  readily 
however,  than  monogamy)  yet,  of  its  nature,  it  puts  an  obstacle  in 
the  way  of  their  proper  education,  hnd  in  fact,  as  we  have  shown 
above,  the  normal  education  of  children  requires  the  care  and 
joint  efforts  of  both  father  and  mother  ;  but  where  the  father  is 
unknown,  his  assistance  must  practically  be  wanting  (*).  The 
union  of  a  woman  with  two  or  three  husbands  at  the  same  time 
is  therefore  absolutely  unlawful,  and  such  a  marriage  is  altogether 

invalid. 

175. 

II.  Simultaneous  polygyny  is  opposed  to   the  secondary,  but  not  Polygyny  is 

to  the  primary  precepts  of  the  natural  law.  Ike  secondly 

Such  a  union  does  not  in  fact  destroy  the  essential  economy  of  Precepts  of 

.  .  tiie  naturul 

marriage,  and  therefore  is  not  subversive  of  the   established  order.        law. 

The  procreation  and  education    of  children,  the  proper  end  of 

marriage,  are  not  rendered  impossible  thereby,  and  consequently 

simultaneous  polygyny  is  not  opposed  to  the  primary  precepts  of 

the  natural  law.  On  the  other  hand,  however,  such  a  union  is  of  a 


1.  Westermarck,  o.  c,  p.  114  s.  and  p.  426  s.,  enumerates  the  different  lorms 
of  polyandria  ;  likewise  Peitel,  o.  c,  p.  26  ;  see  also  La  Revue  socialc  catltolique, 
VIII  (1904),  p.  49  ss.,  where  we  read  that  in  Thibet  polyandria  exists  in  a  special 
form,  caWcd  punaluan  :  several  brothers  having  one  and  the  same  wife,  though  it 
is  properly  the  eldest  who  possesses  her  by  right,  and  after  his  death,  the  second. 
Cf.  AviGDOR,  o.  c,  p.  31 ;  Howard,  o.  c,  I,  p.  68  s.  and  p.  81. 

2.  St.  Thomas,  in  Suppl.,  qu.  LXV,  art.  i,  ad8  :  <  Unam  uxorem  habere  plu- 
res  viros,  est  contra  prima  praecepta  legis  naturae,  eo  quod  per  hoc  quantum  ad 
aliquid  totaliter  toUitur,  et  quantum  ad  aliquid  impeditur  bonum  prolis,  quod 
est  principalis  matrimonii  finis.  In  bono  enim  prolis  intelligitur  non  solum  pro- 
creatio,  sed  etiam  educatio  ;  ipsa  enim  procreatio  prolis,  etsi  non  totaliter  tolla- 
tur,  quia  contingit  post  impraegnationem  primam  iterum  mulier  impraegnari..., 
tamen  multum  impeditur... ;  sed  educatio  totaliter  tollitur,  quia  ex  hoc  quod  una 
mulier  plures  maritos  habet,  sequeretur  incertitude  prolis  respectu  patris, 
cujus  cura  nccessaria  est  in  educando  », 


292  THE  UNITY  OF  MARRIAGE 

kind  to  injure  marriage  (and  therefore  society),  because,  in  the 
generality  of  cases,  it  is  prejudicial  to  the  education  of  the  child- 
ren ;  the  peace  of  the  family  is  often  disturbed,  mutual  support 
is  wanting,  and  the  cohabitation  of  the  parties  which  is  necessary 
for  the  work  of  education,  frequently  becomes  exceedingly  pain- 
ful. Hence  we  conclude  that  polygyny,  by  the  natural  law,  and 
abstracting  from  all  positive  law,  is  not  merely  discountenanced 
as  less  fitting,  but  strictly  prohibited,  and  that  every  marriage  con- 
tracted under  these  conditions  is  radically  null  (*). 

This  is  also  clearly  taught  by  the  C.  S.  O.  in  its  Insiruct.  of  20 
Jime  1866  (*) :  <  It  is  a  universally  recognised  principle  that  a 
marriage  celebrated  between  infidels,  at  a  time  when  the  man  had 
a  former  wife  still  living,  is  mill  and  invalid  both  in  the  divine  and 
Viaiural  law  ».  The  authority  of  Bened  XIV,  De  syn.  diocc,  1. 
XIII,  c.  21,  n.  9,  corroborates  this  doctrine  ;  he  says  :  «  Duran- 
dus  and  Abulensis  teach  that  polygamy  is  not  repugnant  to  the 
natural  law.  Though  it  cannot  be  said  that  this  singular  opinion 
has  been  condemned  by  the  Council  of  Trent,  it  nevertheless 
deserves  to  be  censured  as  improbable  and  contrary  to  the  com- 
mon teaching  of  theologians,  who  declare  polygamy...  contrary 
alike  to  the  divine  and  to  the  natural  law  ».  See  also  Wernz,  o  c, 
IV,  no  361,  together  with  notes  34  and  35. 

Note.  Generally  the  two  sexes  are  approximately  the  same  in 
number.  This  fact  helps  to  show  that  polygyny  is  in  opposition 
to  the  natural  law  (^). 


1.  Cf.  Martin,  o.  c,  I,  p.  149-155,  He  there  proposes  several  considerations 
drawn  from  the  nature  of  marriage  and  from  the  reciprocal  rights  of  husband 
and  wife,  which  strongly  support  our  thesis.  Thus,  on  p.  153  s.,  he  says  :  «  Justitia 
jurisve  aequalitas  neccssario  requirit  nullum  teneri  in  commutationibus  plus 
dare  quamaccipit,  aut  minus  accipere  quam  tradit.  Ergo  et  necessario  Deus 
voluit  virum  et  mulierem  conjugium  contrahentes  non  teneri  minus  accipere 
quam  tradunt,  nee  proinde  teneri  utrumlibet,  pro  toto,  quod  tradit,  corporis 
sui  dominio  ac  jure,  accipere  partitum  et  incomplctum  jus  atque  dominium  in 
corpus  alterius.  Ergo  non  potest  vir...  pro  integro,  quod  accipit  mulieris  corpus 
corpori  suo  aequale,  jure  ac  dominio,  partitum  corporis  sui  aut  in  alias  uxores 
dividendum  tradere  jus  et  dominium  ».  Cf.  also  Ziesche,  Die  Sakramentenlehre 
des  Wilhclm  von  Auvergne,  Wien,  1911,  41  s.,  where  he  skilfully  proposes  the 
reason  against  polygyny. 

2.  Collectanea,  n°  1354. 

3.  Cf.  ZiESCHE,  1.  c.  ;  sec  on  the  other  side  Westermarck,  0.  c,  p.  434  ss. ; 
Howard,  o.  c,  I,  p.  136  ss. 


THE   UNITY   OF   MARRIAGE  293 

116. 

Third  proposition.  SmuUaneous  polygyny  (properly  called  poly-    The  law 

gamy)  was  forbidden  from  the  begin f^ivg,  according  to  the  most  pro-  J^^su^^h- 
bable  obirdon,  by   the  Positive  divine  law,  but  this  prohibition  of  the  ^d  by  God  in 
dtvine  as  also  of  the  seconaary  natural  law,  was  subsequently  removed        i«,T, 
under   the   Old  Law  by  a   divine  dispensation,  which   Christ  after- 
wards entirely  withdrew. 

Explanation  and  proof. 

I.  In  the  original  institution  of  marriage  God  prescribed  mono- 
gamy and  prohibited  polygamy.  This  follows,  at  least  with  great 
probability,  from  the  fact  of  the  creation  of  a  single  man  and  a 
single  woman,  and  especially  from  the  words  of  Adam  inspired  by 
God  :  «  Wherefore  a  man  shall  leave  father  and  mother,  and  shall 
cleave  to  his  wife, and  they  shall  be  two  in  one  flesh*.  Gen.  II,  24. 

Interpreting  these  words.  Innocent  III,  cap.  8,  X,  IV,  19,  draws 
from  them  the  following  argument  :  «  It  (Holy  Scripture)  does 
not  say  :  (God  created)  three  or  more,  but  only  two  ;  neither  does 
it  say  :  he  shall  cleave  to  his  wives,  but  to  his  wife.  No  one 
could  ever  have  several  wives  at  the  same  time,  unless  authoris- 
ed by  a  divine  revelation  ;  then  only  could  this  custom  be  called 
lawful,  and  it  is  by  reason  of  this...  that  the  Patriarchs  and  other 
holy  men,  of  whom  it  is  written  that  they  had  several  wives  at  the 
sanie  time,  did  not  thereby  commit  adultery  ». 

The  Council  of  Trent,  Sess.  XXIV,  De  sacram.  matrimonii,  also 
assumes  that  the  words  of  Adam  teach  the  unity  of  marriage, 
since  it  says  :  «  Our  Lord  taught  more  plainly  that  the  bond  of 
marriage  unites  only  two  persons,  when,  referring  to  these  words 
(they  shall  be  two  in  one  flesh)  as  uttered  by  God  himself.  He 
added  :  therefore  now  they  are  not  two,  but  one  flesh  ».  As  Pal- 
wi^n  observes  ('),  «  if  Our  Lord,  in  explaining  the  words  of  Adam 
which  are  the  words  of  God,  taught  more  plainly  the  unity  of  marri- 
age, we  must  conclude  from  that,  that  God  had  already  taught  it 
plainly,  i.  e.,  ordained  it  from  the  beginning  ».  The  Catechism  of 
the  Council  of  Trent,  P.  II,  c.  VIII^  par.  19,  says  in  like  manner  : 
«  By  these  words  He  (Our  Lord)  showed  that  marriage  was  insti- 
tuted by  God,  so  as  to  be  the  union  of  two  persons  only,  and  not 
of  more   than  two  ».    Finally,    in  agreement  with  this  are  the 

I.  0.  c,  p.  166. 


294  THE   UNITY   OF  MARRIAGE 

words  of  Nicholas  the  Great,  in  his  reply  ad  constdta  Bnlgaroriim, 

c.  51  (Migne  CXIX,  col.  999)  :  «  To  have  two  wives  at  the  same 

time  is  not  permitted  either  by  the  original  condition  of  the  human 

race,  or  by  the  Christian  law  ». 
177. 
but  was  II.  In  the  Old  Law,  this  prohibition  emanating  alike  from  the 

tne  Old  Law,  divine  law  and  from  the  secondary  natural  law  was  removed  by  a 

dispensation.  This  is  evident  1.  from  the  words  of  Deuteronomy, 

XXI,  15,  16  ('),  where  Scripture  clearly  assumes  the   lawfulness 

of  polygyny  ;  2.  from  the  example  of  the  Patriarchs,  who,  unblamed 

by  the  Scriptures,  had  several  wives  at  the  same  time  (*)  ;  3.  from 

the  words  of  Innocent  III,   which  we  have  just  quoted,  c.  8,  X, 

IV,  19. 

It  is  generally  taught  that  the  dispensation  in  question  was 
introduced  after  the  deluge  in  favour  of  the  Jewish  race  ('),  and 
according  to  St.  Thomas,  it  was  made  known  by  divine  inspira- 
tion (*). 

Nevertheless,  this  dispensation  directly  given  in  favour  of  the 
Hebrews,  indirectly  and  concomitantly  benefited  the  Gentiles. 
«  For  the  heathens...  could  easily  persuade  themselves  that  it  was 
lawful  for  them  to  follow  therein  the  example  of  just  and  holy 
men  ;  and,  having  regard  to  these  circumstances,  if  God  had 
wished  to  restrict  this  privilege  to  the  faithful  people  alone,  to  the 
exclusion  of  all  others.  He  would  have  said  so  distinctly,  so  as  to 


1.  «  If  a  man  have  two  wives,  one  beloved,  and  the  other  hated,  and  they  have 
had  children  by  him,  and  the  son  of  the  hated  be  the  first  bom,...  ho  may  not 
make  the  son  of  the  beloved  the  first-born,  and  prefer  him  before  the  son  of  the 
hated  ». 

2.  Among  the  wives  one  was  of  higher  dignity  than  the  others,  who  were  often 
called  concubines,  not  as  if  they  were  unlawful,  but  because  they  held  a  lower 
wifely  rank.  Cf.  Pesch,  o.  c,  VII,  n°^  833  s. 

3.  Observe,  however,  that  in  the  Mosiac  law,  D^w/.,  XVII,  17,  the  number  of 
wives  was  already  limited  to  a  certain  extent.  See  Coll.  Briig.,  t.  XIII,  p.  260  s., 
and  the  Realencykl.,  t.  V,  p.  744,  showing  that  monogamy  was  in  accord  with  the 
desires  of  Jewish  legislation.  See  also  Watkins,  o.  c,  p.  46  ss. 

4.  «  Lex  autem  de  unitate  uxoris  non  esthumanitus  sed  divinitus  institute,  nee 
unquam  verbo  aut  litteris  tradita,  sed  cordi  impressa  ;  sicut  et  alia  quae  ad 
legem  naturae  qualitercunque  pertinent ;  et  ideo  in  hoc  a  solo  Deo  dispensatio 
fieri  potuit  per  inspirationcm  internam,  quae  quidem  principalitcr  Patribus  facta 
est,  et  per  eorum  cxcmpla  ad  alios  derivata  est  >.  Supplem.,  qu.  LXV,  art.  2. 


THE   UNITY    OF   MARRIAGE  2g5 

avoid  giving  a  reasonable  pretext  for  shameful  concubinage  >  ('). 

From  this  we  can  understand  how  Esther,  at  the  instigation  of 

Mardochai,  permitted    herself  to  be   united   to   king  Assuerus, 

though  he  was  already  married. 

178. 
III.  Fmally,  arguments  are  not  wanting  to  show  that  Christ   and  defini- 

br ought  marriage  back  to  the  original  limits  of  monogamy,  and  made  tablUtedbv 
those  limits  obligatory  and  exclusive.  Christ, 

1.  Matth.,  V,  32,  and  XIX,  g,  taken  in  conjunction  with  Mark, 
X,  II  and  Luke,  XIV,  18,  show  that  the  man  who,  being  married, 
puts  away  his  wife  and  takes  another  commits  adultery  ;  conse- 
quently a  second  marriage  is  invalid  as  long  as  the  first  endures. 
The  Catech.  of  the  Council  of  Trent,  I.  c,  does  not  fail  to  make  use 
of  these  texts,  and  concludes  from  them  that  it  is  no  more  lawful 
for  a  husband  to  have  two  wives  at  once  in  his  house,  than  to 
put  away  his  wife  and  to  take  another. 

2.  The  evidence  of  the  Fathers,  cited  by  Pesch,  o.  c,  VII,  n°  825, 
to  which  may  be  added  the  text  of  Nicholas  the  Great,  given  above, 
is  quite  explicit  on  this  point. 

3.  The  Co?<;/a7s  expressly  teach  the  same.  At  the  second  Council 
of  Lyons,  the  profession  of  faith  of  Michael  Palaeologus  declares  : 
«  As  regards  marriage,  it  (the  Holy  Roman  Church)  holds  that  a 
man  may  not  at  the  same  time  have  more  than  one  wife,  nor  a 
woman  more  than  one  husband  »  (^).  At  the  Council  of  Trent,  the 
second  canon  of  Session  XXIV  pronounces  anathema  against 
anyone,  who  maintains  «  that  it  is  lawful  for  Christians  to  have 
more  than  one  wife  at  the  same  time,  and  that  the  practice  is  for- 
bidden by  no  divine  law  ». 

We  may  further  adduce  the  declaration  of  the  C.  S.  O.,  in  its 
Inslr.,  of  1866,  quoted  above,  as  also  in  its  Intsr.,  of  28  March 
i860  ('). 


1.  Palmibri,  o.  c,  p.  118  s. 

2.  Denzinger,  o.  c,  no  465. 

3.  Collectanea,  n°  1297  •  "  Certissimum  est  polygamiam  jure  evangelico  esse 
omnino  illicitam  ;  unde,  postquam  Jesus  Christus  matrimonium  ad  pristinam 
reduxit  sanctitatem,  unitatem  et  indissolubilitatem,  addita  pro  baptizatis  sacra- 
ment! dignitate,  nee  infidelibus,  nee  Judaeis,  nee  ulli  mortalium  licuit  plures 
sibi  copulare  uxores.  Consequenter  divinitus  sic  restituta  monogamia,  nonnisi 
unam  uni  legitime  validoque  conjugio  devinciri  posse  inconcussum  fidei  dogma 
habetur  ». 


296  THE  INDISSOLUBILITY  OF  MARRIAGE 

even  for  infi-  The  documents  of  the  Holy  See,  and  especially  the  above-men- 
tioned  instructions  of  the  C.  S.  O.,  clearly  show,  as  we  have  seen, 
that  the  law  of  monogamy,  re-established  by  Christ,  is  binding  not 
only  on  Christians  but  also  on  infidels. 

The  reason  of  this  is,  as  Billot  shows  (')  :  «  firstly,  because 
the  words  :  whosoever  shall  put  away  etc.  (Matth.  XIX,9)  are  unlimit- 
ed in  their  application  ;  secondly,  because  the  natural  law  binds 
alike  the  unbaptized  and  the  baptized,  and  this  law  naturally  re- 
sumes its  full  force  in  respect  of  all,  when  the  dispensation  which 
permitted  polygamy  has  been  withdrawn  Q) ;  finally,  because  this 
dispensation  directly  affected  the  faithful  alone,  and  all  others  only 
concomitantly  >  (^). 

Article  2.  The  indissolubility  of  the  conjugal  bond. 

This  article  is  divided  into  four  sections.  In  iht  first  and  second 
we  shall  treat  in  general  of  the  law  of  indissolubility  in  the  light  of 
the  natural  law  and  of  the  positive  divine  law  ;  in  the  third  we 
shall  speak  of  the  various  derogations  from  this  law  ;  and  finally, 
in  the  fourth,  we  shall  show  the  absolute  indissolubility  of  marriage 


It  is  well  known  that  Luther  and  Melanchthon  held  that  polygamy  was  not 
contrary  to  the  Scriptures,  and  that  they  permitted  bigamy  in  the  case  of  Philip 
of  Hesse.  They  also  recommended  a  like  course  to  Henry  VIII  of  England,  and 
advised  him,  instead  of  seeking  a  declaration  of  nullity  of  his  marriage  with 
Catherine  and  divorcing  her,  to  take  a  second  wife,  while  still  retaining  the  for- 
mer. It  seems  also  that  Clement  VII,  in  the  case  of  Henry  VIII,  showed  some 
hesitancy  on  the  question  of  its  strict  and  undispensable  prohibition  by  Holy 
Writ.  Cf.  Grisar,  Luther,  II,  p.  374  ss.,  coll.  p.  213  ss. 

1.  O.  c„  p.  378. 

2.  «  Dicendum  quod  habere  plures  uxores  est  contra  legem  naturae,  cui  etiam 
infideles  sunt  adstricti  ;  et  ideo  non  est  verum  matrimonium  infidelis  nisi  cum 
ilia  cum  qua  primo  contraxit  ».  St.  Thomas,  Suppl.,  qu.  59,  art.  3,  ad  4. 

3.  As  a  matter  of  fact  polygamy  still  flourishes  in  several  non-christian  nations, 
and  even  in  one  sect  that  calls  itself  Christian,  viz.,  that  of  the  Mormons.  See 
C.  WiLLEMS,  o.  c,  p.  389. 

We  should  add  that  in  most  polygamous  nations  polygamy  has  certain  mono- 
gamistic  tendencies  :  one  of  the  wives  has  precedence  over  the  others,  and  to 
some  extent  enjoys  the  rights  of  a  lawful  wife.  Often  also  each  wife  has  a  sepa- 
rate abode  and  constitutes,  as  it  were,  a  distinct  family.  Cf.  Leroy,  Religion  des 
Primiti/s,  p.  loi  s. ;  Howard,  o.  c,  I,  p.  134. 


THE  INDISSOLUBILITY   OF   MARRIAGE  297 

ratum  ei  consiimmatum.  This  will  be  followed  by  a  supplementary 
notice  on  civil  divorce. 

Paragraph  I.  THE  I  AW  OF  INDISSOLUBILITY  BEFORE  THE 
NATURAL  LAW. 

Proposition.  Marriage  is  indissoluble  by  the  natural  law  :  arbitra-    Arbitrary 
ry  dissolubility,  at  the  mere  caprice  of  the  parties,  is  opposed  to  the  prima-  ^/"^^^*^^ 
ry  natural  laiv  ;  dissolubility  restricted  within  certain  limits  is  contrary  ts  opposed  to 
to  the  strictly  prohibitive  secondary  natural  law.  natural  law. 

Explanation  and  demonstration. 

I.  The  arbitrary  dissolubility  of  marriage,  preached  by  the  advo- 
cates of  free  love,  is  in  opposition  to  the  primary  natural  law.  For, 
this  system  means  the  ruin  of  married  life  and  of  the  family,  and 
so  ol  society  also.  Arbitrary  divorce  does  away  with  the  proper 
end  of  marriage,  that  is  to  say,  the  procreation  and  right  educa- 
tion of  children.  The  attainment  of  this  end  requires,  for  a  long 
space  of  time,  the  constant  and  commo7i  solicitude  of  the  father  and 
mother.  There  must  therefore  be  a  bond,  which,  if  not  perpetual,  is 
at  least  lasting  and  secure  to  bind  husband  and  wife  together  in 
such  a  manner,  that  neither  the  one  nor  the  other  is  free  to- 

break  it  capriciously  at  any  moment  ('). 

180 

II.  As  regards  dissolubility  restricted  and  limited  to  certain  deter-    Restricted 

minate  causes  and  circumstances  ;  dtssolubility 

«  opposed  to 
1.  Such  dissolubility  is  not  repugnant  to  the  primary  principles  tU  secondary 

of  the  natural  law  ;  for  neither  the  essence  of  marriage  nor  the 
attainment  of  its  principal  end  necessarily  requires  absolute  indis- 
solubilit}'.  Thus,  this  principal  end,  the  generation  and  education 
of  children,  would  not  be  radically  ruined,  if  it  were  lawful  to 
dissolve  the  marriage  when  the  work  of  education  had  been  com- 
pleted. 

But.  2.  restricted  dissolubility  is  in  opposition  to  the  secondary 
principles  of  the  natural  law.  If  it  does  not  tend  to  destroy  marri- 
age in  its  essence,  and  so  to  undermine  society  itself,  it  is  never- 
theless of  a  nature  to  injure  seriously  the  partnership  of  marriage. 
If  we  look  at  things  per  se,  and  in  their  generality,  outside  of  strict 
indissolubility,  the  stability  of  the  union  between  husband  and 


I.  See  above,  110^48  and  49. 


298  THE  INDISSOLUBILITY   OF   MARRIAGE 

wife  and  their  mutual  fidelity  are  adversely  affected  by  it ;  the 
dignity  of  the  wife  and  the  education  of  the  children  suffer,  so  that 
the  end  of  marriage,  though  still  remaining  possible,  becomes 
more  difficult  of  attainment.  Let  us  develop  this  idea  : 

a/  No  one  will  deny  that  the  prospect  of  a  new  marriage  and  of 
a  new  family  will  render  parents  less  solicitous  in  providing  for  the 
welfare  of  the  children  by  the  existing  marriage,  and  that  the  lot 
of  the  children  is  truly  lamentable  when  their  father  and  mother 
are  divorced  from  one  another,  and  have  contracted  fresh  marri- 
ages ('). 

b/Then  again  mutual  love  between  husband  and  wife  will  weaken, 
and  conjugal  fidelity  be  diminished,  as  a  direct  consequence  of  the 
possibility  of  divorce. 

In  the  nature  of  things,  the  stronger  the  marriage  bond  is,  the 
less  it  can  be  tampered  with,  the  closer  will  be  the  union  of  hearts, 
the  greater  will  be  the  effects  of  mutual  love,  the  better  disposed 
will  husband  and  wife  be  to  bear  with  one  another's  shortcomings 
and  to  avoid  occasions  of  discord  (*).  On  the  other  hand,  if  separ- 
ation is  regarded  as  a  possibility  that  may  be  realised,  intimacy 
slackens,  love  grows  cold,  especially  on  the  part  of  the  partner 
contemplating  a  new  alliance,  and  a  frivolous  pretext  suffices  to 
turn  it  into  aversion  and  hate  (').  The  mere  possibility  of  dissolu- 
tion causes  marriage  to  be  entered  upon  lightly,  without  any 
serious  proofof  one  another,  and  without  looking  for  a  well  fixed 


1.  Cf.  COMBIER,    O.  C,    p.  437  s.  ;    DiDON,    O.     C,     p.     31-34;    MONSABRE,    O.    C, 

p.  65-67  :  Salsmans,  o.  c,  p.  30  ss.  ;  Bockenhoff,  o.  c,  p.  68  s.  ;  De  Smet,  Over 
de  Echtsclieiding,  p.  81. 

2.  «  Erit  fidelior  amor  unius  ad  alterum,  dum  cognoscunt  se  indivisibiliter  con- 
junctos ;  erit  etiam  utriusque  sollicitior  cura  in  rebus  domesticis,  dum  se  perpe- 
tuo  commansuros  in  earundem  rerum  possessione  existimant  ».  St.  Thomas, 
C.  Gent.,  1.  Ill,  c.  123.  The  Catech.  of  the  Council  of  Trent,  P.  II,  c.  VIII,  par.  21, 
in  like  manner  says  :  Once  the  faithful  realise  that,  even  if  separated  as  to  bed 
and  board,  they  are  still  bound  by  the  marriage  bond,  and  that  all  hope  of  a 
second  marriage  is  cut  off,  they  are  less  ready  to  give  way  to  anger  and  discord  ». 

3.  «  Le  divorce  est  un  obstacle  a  I'union  des  dmes,  a  I'affection  mutuelle,  k  la 
confiance  r^ciproque  qui  fait  la  dignite  du  mariage  ;  il  s'oppose  a  I'attachement 
v6ritable  des  epoux  I'un  pour  I'autre,  car  on  ne  s'attache  veritablement  que 
quand  on  est  sur  de  pouvoir  etre  toujours  attache  ».  Combiek,  o.  c,  p.  431.  See 
also  DiDON,  o.  c,  p.  41-44  and  Monsabre,  o.  c,  p.  59-61,  whose  eloquence  extols 
the  perpetuity  and  indefectibility  of  conjugal  love  ;  Salsmans,  o,  c,  p.  29  s. 


THE  INDISSOLUBILITY   OF  MARRIAGE  299 

mutual  affection  (').  Finally  the  very  possibility  of  a  fresh  marriage 
makes  married  people  less  inclined  to  shun  unlawful  amours,  and 
even  serves  as  an  incitement  to  infidelity  (*). 

c/  We  can  now  easily  understand  that  the  dignity  of  the  wife  is 
here  at  stake,  and  that  the  dissolubility  of  marriage  exposes  her  to 
contempt  and  distress.  Divorce  has,  in  fact,  far  graver  conse- 
quences for  the  woman  than  for  the  man.  See  the  author's  bro- 
chure. Over  de  Echtscheiding ,  p.  ii  s.  ('). 

The  conclusion  drawn  from  this  is  that  the  general  good,  and 
social  order  demand  that  divorce  should  be  forbidden,  and  that 
the  indissolubility  of  the  conjugal  bond  should  be  safeguarded. 

It  may,  indeed,  be  admitted  that,  in  certain  exceptional  cases 
and  within  well  defined  limits,  the  power  of  divorce  would  not 
be  gravely  injurious  to  the  stability  of  marriage  and  to  that  of 
social  order ;  but  in  order  that  strict  indissolubility  may  be  part 
of  the  natural  law,  it  is  enough  that  it  is,  if  we  look  at  things /igr 
se  and  in  their  generality,  the  only  effective  guarantee  of  the  sta- 
bility of  the  family. 

Now,  if  there  are  grounds  for  granting  a  dispensation  in  certain 
exceptional  circumstances,  for  a  definite  class  of  marriages,  in 
view  of  special  circumstances,  it  is  to  God,  and  to  Him  alone,  that 


1.  Cf.  Salsmans,  o.  c,  p.  28  s. 

2.  «  Le  manage,  dit  Balmes,  en  assignant  a  la  passion  un  objet  legitime,  ne 
tarit  pas  cependant  la  source  d'agitation  que  le  cceur  recele.  La  passion  affadit, 
la  beaute  se  fane,  les  illusions  se  dissipent,  le  charme  disparait.  L'homme  en  pre- 
sence d'une  r^alite  qui  est  loin  des  reves  auxquels  se  livrait  son  imagination  de 
feu,  sentnaitre  dans  son  cceur  des  desirs  nouveaux...  Lachez  alors  la  bride  aux 
passions  de  rhomme  ;  pcrmettez-lui  d'entretenir  le  moins  du  monde  1' illusion 
qu'il  peut  chercher  le  bonheur  dans  de  nouveaux  liens  ;  laissez-lui  croire  qu'il 
n'est  pas  attache  pour  toujours  a  la  compagne  de  sa  vie  ;  vous  verrez  que  le 
degout  s'emparera  de  lui  plus  promptement...,  les  liens  commenceront  k  s'user 
a  peine  formes  et  se  rompront  au  premier  choc  ».  Combier,  o.  c,  p.  440.  <  A  celui 
que  tourmente  une  passion  adultere,  elle  (la  loi  de  I'indissolubilite)  dit :  Prends 
garde,  tu  ne  t'appartiens  plus.  Le  divorce,  au  contraire,  encourage  le  cceur  infi- 
dele  et  lui  dit :  Va  ou  I'amour  t'appelle,  tu  peux  te  reprendre  ».  Monsabre,  o.  c, 
p.  90. 

3  Cf.  i^IoRizoT-THiBAULTj  La  fcmme  et  le  divorce,  dans  la  Reforme  Sociale,  t.  42, 
p.  195  s.  ;  Peytel,  o  c,  p.  187  s.  ;  Bockenhofl,  o.  c,  p.  72-76.  See  on  the  other 
side  Naquet,  Vers  I'union  libre,  ch.  5,  where  he  endeavours  to  show  that  divorce 
is  needed  in  the  interest  of  the  wife. 


300  THE   INDISSOLUBILITY  OF  MARRIAGE 

it  belongs  to  do  so,  as  we  have  said  above  in  n"  172.  No  man  has 
the  authority  to  do  it. 

Moreover,  no  purely  human  authority  would  be  capable  of  re- 
striction to  the  narrow  Hmits  within  which  the  power  of  divorce 
would  be  compatible  with  the  general  good. 

Taking  into  consideration  the  inconstancy  of  man,  his  inordi- 
nate desires  and  his  aversion  to  trouble  and  difficulties,  the  power 
of  granting  divorce  would  inevitably  extend  still  more  and  more, 
until  it  ended  in  free  uniotj,  free  love  (')  and  the  suppression  of  all 
permanent  marriage.  Here,  then,  we  have  the  logical  consequence 
that  the  defenders  of  indissolubility  advance  against  the  advocates 
of  divorce  (■-);  here  too  the  ideal  that  the  advocates  of  divorce 
professedly  aim  at  (') ;  to  this  the  current  of  popular  opinion  is 


I.  Free  union  is  the  union  of  man  and  woman  contracted  without  the  inter- 
vention of  any  social  authority,  and  dissoluble  at  the  will  of  the  parties.  Free 
love  goes  further  than  this  ;  for,  while  free  union  preserves  some  appearance  of 
marriage  and  wedded  life,  and  leaves  to  the  parents  the  care  of  the  children, 
free  love  supposes  communism,  the  handing  over  of  the  children  to  the  care  of 
the  community,  and  the  matriarchate.  Cf.  Loslbver,  o.  c  ,  p.  24  ss. 

2  <  Contincre  divortia  intra  provisos  terminos  tarn  difficile  factu  est  quam 
sistcre  in  medio  cursu  acerrimarum  flammas  cupiditatum  ».  Leo  XIII,  in  his 
Allocution  of  the  16  Dec.  190T.  Cf.  Collat.  Brug.,  t.  VII,  p.  169  s. 

«  En  opposant  la  liberte  individuelle  k  I'indissolubilite  du  mariage,  vous  ne 
tarderez  pas  a  aller  plus  loin  que  la  loi  de  1S03,  plus  loin  que  la  loi  de  17921 
vous  arriverez  k  la  doctrine  de  I'union  libre,  c.-a-d.  k  la  ruine  de  la  societe 
domestique  >.  Discourse  of  Mgr.  Freppel,  13  June  1882,  in  Riberolles,  o.  c, 
p.  103.  Brisson  also,  as  given  in  the  same  work,  p.  96,  reasoned  in  the  same  way 
when  he  said  :  «  Ne  vous  contentez  pas  du  divorce  par  consentement  mutuel, 
mais  introduisez  dans  la  loi  le  divorce  par  la  volont^  unilaterale  ;  car  c'est  par 
la  seulement  que  vous  pourrez  parvenir  a  aifranchir  les  ^poux  des  veritables 
douleurs  du  mariage  ;  mais  alors,  si  vous  demandez  le  divorce  par  volonte  uni- 
laterale, mieux  vaudrait  rendrc  I'union  libre  et  abolir  le  mariage  lui-meme  >. 
Cf.  also  Lemaire,  o.  c,  p.  167  s.  ;  Didon,  o.  c,  p.  67-70. 

3  Thus  Naquet,  through  whose  instrumentality  divorce  was  introduced  into 
France  in  1884,  bluntly  avows  that  free  union  and  free  love  are  the  ideals  to  be 
aimed  at.  In  the  columns  of  the  Journal  of  8  June  1908  he  wrote  :  «  Je  suis  con- 
vaincu  que  nous  marchons  vers  I'union  libre,  c.-a-d.  vers  I'abandon  de  toutes  les 
formalit^s  administratives  et  de  toutes  les  entraves  judiciaires  qui  obstruent  a 
cette  heure  les  portes  d' entree  et  de  sortie  du  mariage  ».  See  also  his  brochure, 
Vers  VUnion  libre,  ch.  3  and  7.  Cf.  Avigdor,  o.  c,  p.  290  ;  Riberolles,  o.  c, 
p.  153  s. ;  Abram,  o.  c.  p.  109  s. ;  Nystrom,  o.  c,  p.  331  s.  and  257  ss.  The 
Socialists  have  the  same  end  in  view. 


THE   INDISSOLUBILITY   OF  MARRIAGE  30I 

strongly  tending (•),  as  daily  experience  only  too  clearly  shows ('). 
We  may  therefore  look  upon  the  following  conclusion  as  fully 


Many  other  writers,  convinced  that  the  moral  situation  is  not  at  present  ripe 
for  free  union  and  free  love,  do  all  in  their  power  to  facilitate  divorce  and  to 
make  it  readily  obtainable,  even  at  the  will  of  the  one  party.  In  the  front  rank 
of  this  unfortunate  campaign  are  Paul  and  Victor  Marguerite  ;  see  their 
pamphletfl' Blargissement  du  Divorce,  and  their  work,  Les  Deux  Vies.  Their  cry 
is  not  free  love,  hut  free  marriage.  Cf.  Bechaux,  Reforitte  Sociale,  (1903),  t.  45, 
p.  Ill  s.  ;  read  also  Hamburger,  o.  c.  ;  Abram,  o.  c,  who  sets  forth  his  own  opi- 
nion, p.  208  ss. ;  Bessu,  o.  c,  n.  343  ss. ;  Schaub,  p.  c,  p.  28  ss. 

The  patrons  of  the  German  school  known  as  «  Neue  Bthik  »  write  freely  in  the 
same  sense.  According  to  them  it  is  for  love  alone,  the  intimate  union  of  hearts, 
to  rule  and  regulate  marriage  ;  as  long  as  that  love  endures,  the  conjugal  union 
will  spontaneously  endure  ;  but  when  it  disappears,  the  only  thing  is  to  break 
the  marriage  tie,  which  could  then  only  serve  as  the  sanction  of  an  abnormal 
and  immoral  state  of  affairs.  Cf.  Bockenhoff,  o.  c,  p.  22  s. ;  Lichtenberger, 
o.  c,  p.  210-225 ;  Knock,  L'Education,  p.  18  ss. 

1.  The  popular  tendency  in  this  direction  grows  ever  more  and  more,  fed,  as 
it  is,  by  the  shameless  novels  and  plays,  spoken  of  by  Avigdor,  o.  c,  p.  239-310 ; 
Abram,  o.  c,  p.  121  s.,  and  Bockenhoff,  o.  c,  p.  20,  who  says  :  «  dass  von  80 
modernen  Romanen,  17  die  Ehe  als  eine  iiberlebte  Institution  lacherlich  machen, 
II  von  der  Nut^lichkeit  dcr  Ehescheidung  handeln,  22  die  freie  Liebe  vcrtei- 
digen,  7  sich  iiber  die  ehelische  Treue  lustig  machen,  und  23  sogar  von  der  Ehe 
in  geradezu  skandaloser  Weise  sprechen  ».  See  the  discussions  on  this  subject 
in  the  Belgian  Chambers,  in  1904-1905  and  1905-1906.  Cf.  the  XX'  Steele,  19  nov. 
1904  and  3  Feb.  1907  ;  Avigdor,  o.  c,  p.  239-310. 

2.  Divorce  was  introduced  into  France  in  1792,  and  rendered  more  and  more 
accessible  by  ever  widening  legislative  concessions,  so  that  the  legislators  them- 
selves at  last  became  alarmed  at  the  enormous  number  of  households  broken 
up.  See  below,  n"  203c,  towards  the  end. 

For  the  existing  situation,  see  Knock,  Rev.  eccl.  ds  Liege,  1905-1906,  p.  326- 
336,  and  especially  Jacquart,  o.  c  ,  according  to  whose  calculation  the  number 
of  divorces  pronounced  in  Belgium  increases  from  year  to  year  ;  in  1870  it  was 
81  ;  in  1890,  373  ;  in  1907,  841  (p.  14  s.) ;  in  1908,  892 ;  while  in  1910  it  reached 
1039.  The  author  goes  on  to  compare  the  different  nations  with  one  another  in 
this  respect.  In  France,  on  an  average,  more  than  10.000  divorces  are  pronounced 
in  a  year  ;  in  Germany,  over  13,000  (according  to  Schaub,  o.  c,  p.  36,  in  1908 
the  exact  number  was  13,327)  ;  in  the  United  States,  more  than  60,000  (p.  73), 
(72,062  in  1906,  according  to  the  abstract  given  by  Lichtenberger,  o.  c,  p.  67), 
and  over  xoo,ooo  in  Japan.  See  also  C.  Willems,  o.  c,  p.  398  s. ;  Archiv.  f.  k. 
Kirchenr.,  1909,  p.  756  s. ;  Schulze,  o.  c,  p.  709  ss. ;  Tlie  Cathol.  Encyclop.,  under 
Divorce,  t.  V,  p.  68  ;  Detrez,  o.  c,  who,  on  page  280,  gives  a  specimen  of  a  letter 
announcing  a  divorce,  written  on  the  same  lines  as  an  announcement  of  marri- 
age ;  cf.  also  Besse,  1.  c,  p.  347. 


$01  THE  INDISSOLUBILITY  OP   MARRIAGE 

demonstrated  :  the  good  of  society  as  a  whole,  and  consequently 
the  natural  law,  demand  that  marriage  should  be  indissoluble,  and 
that  no  human  authority  should  have  it  in  its  power  to  dissolve 
the  marriage  bond. 

Note.  1.  Divorce  is  injurious  to  society  on  more  than  one  head, 
for  it  not  only  affects  marriage,  but  also  favours  immorality,  even 
apart  from  the  violation  of  the  nuptial  law.  This  is  pointed  out  by 
the  infidel  writer,  Morselli,  Per  la  polemica  sul  Divorcio,  Genoa, 
1903  (') :  in  proportion  to  the  number  of  divorces  crime  of  every 
kind  increases,  especially  suicide,  prostitution  and  so  forth  (*). 

2.  Leo  XIII  wrote  some  memorable  pages  on  the  indissolubility 
of  marriage,  in  which  he  clearly  showed  the  evil  of  divorce  and  its 
sad  consequences.  Besides  the  Encyclical  Arcanum  (^),  already 
referred  to,  the  Papal  Allocutions  of  16  Dec.  1901  and  of  24  Dec. 
1902  (Anal.  eccL,  1904,  p.  i8ij  should  be  consulted.  See  also  the 
Instruction  to  the  Bishops  of  Italy,  of  24  Dec.  1901  (Canon.  Cont., 
1902,  p.  226  ss.). 

181. 

Objections.        There  is  evidently  no  lack  of  opposition  to  the  doctrine  which  we  have 

just  established.  The  following  are  the  more  common  objections  raised 
against  it : 

1 .  There  is  a  well  known  saying  to  the  effect  that  the  same  causes  that 
produce  a  result  are  sufficient  also  to  do  away  with  it :  and  therefore,  just  as 
marriage  is  contracted  by  the  mutual  consent  of  the  parties,  so  it  can  also 
be  dissolved  by  the  same. 

Billot,  o.  c,  p.  389,  gives  a  very  good  answer  :  «  That  is  quite  true  of 


1.  Rev.  du  clerge  Francis,  t.  45,  p.  166  ss. ;  Bessb,  1.  c,  n.  347. 

2.  «  La  statistique  ascendante  des  divorces  est  le  thermometre  de  la  moralite  ». 
These  are  the  words  of  the  socialistic  newspaper  Vooruit,&s  given  in  the  Patriote 
of  31  Dec  1904.  Cf.  Jacquart,  o.  c,  p.  55-64  and  78-84  ;  he  compares  the  fre- 
quency of  divorce  with  that  of  suicide,  and  also  with  the  falling  off  of  legitimate 
births,  and  he  says  :  c  On  constate  que  la  frequence  du  divorce  coincide  dans 
Tensemble  avec  un  taux  eleve  de  suicide  et  une  faible  natality  »,  p.  57  and  p.  78. 
Cf.  also  Knock,  L'Education,  p.  40  s. 

3.  « It  is  hardly  possible  to  say  how  great  are  the  sources  of  evil  to  be  found 
in  divorce.  Marriage  contracts  are  thereby  made  changeable ;  mutual  kindness 
is  weakened  ;  pernicious  inducements  to  unfaithfulness  are  supplied  ;  injury  is 
done  to  the  education  and  bringing  up  of  children  ;  occasion  is  given  for  the 
destruction  of  homes ;  the  seeds  of  dissension  are  sown  among  families  ;  the  dig- 
nity of  women  is  lessened  and  brought  low  ».  Authorised  Translation,  London, 
1880. 


THE  INDISSOLUBILITV  OF  MARRIAGE  303 

contracts  that  concern  only  the  private  advantage  of  the  contracting  par- 
ties ;  in  such  a  case  either  party  is  free  to  renounce  his  right,  and  to  hberate 
the  other  from  his  engagement.  But  in  the  case  of  marriage  the  obUgation 
concerns  the  common  good  and  has  relation  to  the  normal  propagation  of 
the  human  species  ;  and  so,  though  this  obligation  is  subject  to  the  free 
will  of  the  contracting  parties  at  the  moment  that  they  assume  it,  it  ceases 
to  be  so  from  the  time  that  it  is  assumed  :  for,  if  it  is  assumed,  it  is 
necessarily  assumed  in  conformity  with  its  nature ;  but  the  natural  law, 
having  in  view  the  common  good,  requires  that  it  should  be  lasting,  and 
that  it  should  have  all  the  conditions  of  stability  ». 

2.  The  indissolubility  of  marriage  fetters  and  insults  the  liberty  of  man. 
Answer.  Liberty  is  not  the  end  of  man,  but  only  a  means  to  it  ;  hence 

this  liberty  is  the  more  perfect,  as  it  conduces  the  more  surely  to  the  proper 
end  of  man.  But  we  have  sufficiently  shown  how  useful  and  even  necessa- 
ry this  indissolubility  is  for  the  safeguarding  of  the  natural  law,  and  how 
the  liberty  of  husband  and  wife  has  need  of  its  salutary  restraint  to  prevent 
them  from  giving  way  too  readily  to  feelings  of  weariness  and  impatience, 
and  from  lightly  throwing  off  the  marriage  yoke  (*). 

3.  The  union  of  husband  and  wife  will  be  all  the  more  intimate  and  con- 
sequently more  lasting,  if  it  is  quite  spontaneous  and  free  from  constraint  of 
any  kind. 

Atiswer.  We  quite  agree  that  if  the  conjugal  union  is  to  be  intimate,  it 
must  be  spontaneous  in  its  origin,  that  is  to  say,  that  the  parties  interested 
ought  to  choose  their  respective  partners  in  acordance  with  their  free  and 
individual  tastes.  But  in  order  that  such  intimacy  may  continue  and  remain 
unshaken  after  marriage,  there  is  need  of  a  new  element,  viz.,  a  bond  that 
really  binds,  to  strengthen  the  parties  against  temptations  that  are  always 
possible,  and  against  the  transitory  difficulties  that  may  arise  (*). 


I.  The  same  argument  is  applicable  to  the  perpetual  vows  taken  by  religious, 
for  the  very  purpose  of  advancing  with  greater  security  and  constancy  in  the 
way  of  perfection,  and  to  avoid  the  temptation  of  turning  back  in  the  face  of  any 
transient  difficulty  or  disgust. 

«  J'ai  fait  des  voeux,  moi,  says  Didon,  o.  c,  p.  151,  des  voeux  eternels  ;  eh 
bien,  dans  ma  foi  d'honnete  homme,  mes  voeux  me  gardent,  mes  promesses  me 
lient.  Et  vous  croyez  que  si  on  avait  des  voeux  d'un  jour,  on  resisterait  !..  Au 
premier  vent  qui  soufHe,  on  aurait  besoin  d'aller  voir  ce  qui  se  passe  sur  ces 
plages  embaumees  vers  lesquelles  nous  invite  la  brise.  Mais  non,  on  r6siste,  li6 
par  cette  chaine  terrible  du  serment  irrevocable,  supreme  garantie  contra  la 
faiblesse  de  I'homme  doutant  de  lui-meme  !  >.  See  also  Bonomelli,  o.  c,  p.  50 
s. ;  Besse,  1.  c.  p.  332  s. 

3.  «  Et  vous  oseriez  dire,  says  Dido-n,  0,  c,  p.  159  s.,  que  dans  le  contrat  conju- 


304  THE  INDISSOLUBILITY   OF   MARRIAGE 

4.  But  the  very  dissolubility  of  marriage  would  provide  the  desired  check 
and  cement  mutual  affection  even  better  than  its  indissolubility.  For  who 
does  not  see  how  easy  it  is  for  a  husband  of  bad  disposition  to  take  advan- 
tage of  the  obligation  that  his  wife  is  under,  to  annoy  her  with  greater 
security  ? 

Answer.  We  do  not  deny  that  this  may  sometimes  happen  ;  and  a 
heartless  husband  would,  perhaps,  treat  his  wife  with  more  respect,  if  he 
knew  that  she  could  obtain  a  divorce.  But  in  the  first  place,  she  can  have 
recourse  to  judicial  separation  as  a  remedy  for  the  evil  ;  and,  in  the  second 
place,  these  occasional  cases,  in  which  the  power  of  divorce  would  really 
promote  a  union  of  hearts,  cannot  outweigh  the  multitude  of  contrary 
cases.  For,  it  cannot  be  denied,  in  the  face  of  daily  experience,  that  as  a 
matter  of  fact  married  people  who  are  free  to  leave  one  another,  and  see 
their  way  to  a  new  marriage,  are  less  patient  inputting  up  with  one  an- 
other's shortcomings,  and  find  their  love  growing  remarkably  cold.  But 
this  has  been  sufficiently  shown  in  our  thesis. 

5.  There  are  households  in  which  life  in  common  has  become  quite 
intolerable,  and  where  there  is  urgent  need  of  divorce  ('). 

Answer.  This  again  is  a  case  for  separation,  which  will  to  a  great  extent 
remedy  the  state  of  affairs. 
But,  if  it  is  still  urged,  that  the  lot  of  the  innocent  party  is  made  too  hard, 


gal,  lorsqu'on  s'unit  sans  y  mettre  ce  ciment  indestructible,  I'union  sera  plus 
intime  !  Quoi !  On  se  s6parera  moins  aisement,  parce  qu'il  sera  permis  de  se 
quitter  !  ». 

I.  This  is  the  most  common  objection  raised  by  the  advocates  of  divorce.  It 
consists  in  exciting  compassion  for  the  innocent  party,  the  unhappy  victim  of 
a  miserable  wretch  See  how  MoNSABRE,  o  c,  p.  83-8^,  treats  it  with  masterly 
eloquence : 

€  Ici,  la  revelation  inattendue  de  repugnantes  infirmites,  ou  d'un  deshonneur 
que  Ton  avait  tenus  caches  ;  1^,  I'explosion  soudaine  de  passions  ou  de  vices 
habilement  contenus;  ici,  des  d6fauts  qui  seh6rissenta  la  moindre  contradic- 
tion et  d^couragent  la  plus  robuste  patience  ;  la,  des  habitudes  dfegradantes 
qu'on  ne  sait  comment  dissimuler,  et  quelquefois  des  infamies  publiques  que  la 
loi  chatie  ;  ici,  des  haines  sourdes  qui  complotent  sans  cesse  ;  \k,  des  colercs  qui 
dclatent  comme  la  foudre  ;  ici,  des  injures,  des  menaces,  des  querelles,  des 
violences,  des  brutalites  ;  I^,  d'abominables  perfidies  ;  ici,  I'infiddlite  envelopp^e 
de  ruse  et  de  mensonge  ;  Ik,  les  trahisons  dc  I'amour  insolemment  instances  au 
foyer  domestique  ;  tout  cc  qu'il  faut  enfin  pour  diviser  les  esprits,  ddchirer  et 
d^sesp^rer  les  coeurs,  tuer  k  jamais  I'amour.  N'est-ce  pas  ce  que  I'on  rencontre 
dans  une  foule  de  menages  ?  Et  dans  ccs  bagnes  de  miseres  morales  et  de  crimes, 
vous  voulez  que  I'homme  et  la  femme  restent  cnchaines  I'un  i  I'autre  commc 
deux  for9ats  trainant  le  meme  boulet  »  ? 


THE  INDISSOLUBILITY   OF  MARRIAGE  305 

being  forced  to  lead  a  single  life  through  the  fault  of  the  other :  we 
admit,  that  the  lot  is  a  hard  one,  and  we  understand  how  the  dream 
of  a  new  alliance  might  come,  perhaps  in  spite  of  oneself ;  but,  once 
more,  the  law  does  not  lapse  because  its  hand  is  heavy  on  some  exceptional 
cases.  It  looks  to  the  general  good,  as  based  on  the  nature  of  things  ;  and 
every  law,  however  good  it  may  be,  accidentally  treads  upon  somebody's 
corns.  Private  good  must  give  way  to  the  public  good,  and,  under  the 
circumstances,  this  demands  the  strict  indissolubility  of  the  marriage  (•). 
To  break  the  conjugal  bond  in  a  case  like  this,  would  be  to  deprive  it  of 
all  efficiency  for  the  future  (-). 

Moreover,  like  hardships  happen  in  many  other  matters.  Thus  the  natu- 
ral law,  which  forbids  the  killing  of  an  innocent  person,  at  times  demands 
the  sacrifice  of  life,  as  for  instance  that  of  a  mother  in  the  birth  of  her 
child,  when  it  cannot  be  otherwise  brought  about. 

And  let  us  not  forget  that  facilities  for  divorce  tend  to  increase  the  num- 
ber of  unhappy  marriages,  and  act  as  an  incentive  to  hasty,  inconsiderate 
and  ill-assorted  unions. 

6.  Married  life  without  mutual  love  is  abnormal,  or  rather  immoral ; 
consequently  when  love  is  irremediably  lost,  the  marriage  bond  ought  to  be 
broken  (-). 

Answer,  a/  As  we  have  seen,  the  perseverance  of  conjugal  love  is 
largely  due  to  the  indissolubility  of  marriage  ;  for  engaged  parties,  with 
the  knowledge  that  death  alone  can  dissolve  their  contemplated  union, 
will  be  careful  not  to  enter  on  the  married  state  lightly,  out  of  mere  pas- 
sion, and  without  a  sincere  assurance  of  a  real  and  mutual  love.  And, 
when  once  the  marriage  has  been  contracted,  the  consciousness  of  its 
indissolubility  will  protect  their  affection  for  one  another  against  the  natu- 
ral inconstancy  of  their  disposition  and  the  blind  impulse  of  passion. 

b/  And  if,  in  an  exceptional  case,  cohabitation  becomes  intolerable, 
owing  to  the  irremediable  loss  of  love,  the  solution  of  the  difficulty 
is  to  be  found  above  in  our  answer  to  the  fifth  objection. 

1.  «  In  legibus  matrimonii  magis  attenditur  quid  omnibus  expediat  quam  quid 
uni  competere  possit  ».  St.  Thomas,  Suppl.,  qu.  LXVII,  art.  i,  ad  4. 

2.  «  Qu'il  y  ait  des  inconvenients  a  maintenir  rindissolubiHte  des  unions  mal 
assorties,  des  mcnages  malheureux  par  incompatibilite  d'humeur  ou  d'interets, 
nul  ne  songe  k  le  nier  ;  mais  la  question  est  de  savoir  si  les  interets  superieurs  de 
Tordre  religieux  et  social  ne  sent  pas  plus  grievement  leses  par  le  divorce  que 
parle  mariageperpetuel  ».  Jaugey,  Dictionnaire  apologctique,  p.  882.  Sec  also 
BouRGET,  Un  divorce,  p.  26  s. ;  Combier,  o.  c.,  p.  448  s.  ;  Salsmans,  o.  c.,p.  33  s. 

3.  BocKENHOFF,  o.  c,  p.  79  s.,  givcs  an  excellent  exposition  of  this  objection 
from  the  standpoint  of  the  «  Nctter  Ethik  ». 

so 


3o6  THE  INDISSOLUBILITY   OP  MARRIAGE 

7.  The  good  of  the  children  requires  that  the  marriage  should  be 
dissolved  when  the  parents  are  involved  in  continual  quarrels  ('). 

Answer.  The  remedy  in  such  a  case  is  rather  to  be  found  in  separ- 
ation than  divorce  ;  for  though  both  measures  alike  put  an  end  to 
these  domestic  scenes,  the  former  is  more  advantageous  to  the  child- 
ren, since  their  father  and  mother  vi^ill  be  better  able  to  attend  to 
their  education,  if  they  remain  separated  without  manying  again, 
than  if  they  were  divorced  and  became  severally  occupied  with  the 
care  of  children  by  another  marriage. 

8.  But  at  least  divorce  ought  to  be  permitted  where  there  are  no 
children  ;  for  then  the  good  of  the  children,  which  is  the  basis  of 
indissolubility,  is  not  in  question. 

Answer,  a/  The  good  of  the  children  is  not  the  only  advantage 
that  comes  from  the  indissolubility  of  marriage,  b/  Even  where  there 
are  no  children,  we  must  remember  that  marriage  is  to  be  considered 
in  its  normal  and  natural  conditions,  rather  than  in  conditions  that 
are  accidental  and  foreign  to  its  proper  functions.  But  it  is  certain 
that  sterility  is  not  natural  to  marriage,  but,  relatively  to  its  oftice, 
of  an  accidental  nature,  c/  Finally,  if  divorce  were  permitted  where 
there  are  no  children,  married  people  might  be  inclined  to  shirk  the 
duty  of  procreation  for  the  pupose  of  obtaining  it  (*). 

The  67 'h  fro-  Corollary.  If  the  indissolubility  of  marriage  by  the  natural  law  is 
tirs*^u{  *^"^  understood,  we  shall  see  that  the  67^'^  proposition  of  the 
Syllabus  was  rightly  condemned  by  Pius  IX  (').  Even  if  it  is  taken 
part  by  part  (in  sensu  diviso)  this  proposition  is  false,  in  that  its 
first  clause  denies  this  indissolubility  of  marriage  in  the  natural  law. 
P.  ViOLLET  is  therefore  vsrong  in  declaring  that  this  proposition  was 
condemned  only  as  a  whole  (in  sensu  composito),  and  in  concluding 
from  that,  that  one  may  maintain  that  marriage  is  not  indissoluble  by 
the  natural  law,  but  that  one  may  not  affirm  that  marriage  is  disso- 
luble by  the  natural  law  in  such  a  way  as  to  make  lawful  the  intro- 
duction of  divorce  by  the  civil  authority  (*). 


1.  Naquet  develops  this  idea  in  his  brochure  Vers  VUnion  litre,  ch.  4. 

2.  Cf.  BoCKENHOFF,   O.  C.,  p.  7I. 

3.  This  proposition  is  taken  from  Ihe  Apostolic  Letter  of  Pius  IX,  of 
the  23  Aug.  1851,  Ad  Apostolicae  Sedis,  and  is  as  follows  :  «  Jure  naturae 
matrimonium  non  est  indissolubile,  et  in  variis  casibus  divortlum  proprie 
dictum  auctoritate  civili  sanciri  potest  ».  Denzinger,  o.  c,  no  1767. 

4.  L'Infaillibilite  du  Pape  et  le  Syllabus,  Paris,  1904  ;  likewise  the  Etudes 
Religieuses,  1905,  (vol.  83),  p.  255  360,  where  he  writes  :  «  J'avais  eu  soin, 
quant  a  moi,    de  faire  entendre   que,  si  la    proposition  67  est  examinee  et 


THE  INDISSOLUBILITY  OF  MARRIAGE  307 

Tiiere  is  no  necessity  to  have  recourse  to  the  explanation  given  by 
BouDiNHON  (')  :  the  proposition  which  maintains  the  indissolubihty  of 
marriage  by  the  natural  law,  is  only  true,  according  to  him,  if  restrict- 
ed to  marriage  ratum  et  consummatum,  since  such  a  marriage  is  the 
only  one  that  is  absolutely  indissoluble  and  never  capable  of  dispen- 
sation (*). 

PARAGRAPH  II.  INDISSOLUBILITY  BEFORE  THE  POSITIVE 
DIVINE  LAW. 

Proposition.  The  principle  of  indissolubility,  resting  on  the  na- 
tural law,  was  sanctioned  by  the  positive  divine  law,  both  under  the 
regime  of  the  original  institution  of  marriage  and  under   the  economy 

of  the  Gospel. 

Demonstration. 

A.  The  original  institution  of  marriage  implies  the  indissolubili-  Marriage  is 
ty  of  the  conjugal  bond.  This  is  clear  from  the  words  uttered  by  j,-,  n^^  divine 
Adam  (already  quoted  above),  when  he  was  joined  in  marriage  ''^^.•"  *^  "?' 
with  Eve,  Gen.,  II,  24  :  «  Wherefore  a  man  shall  leave  father  and  original  itp- 
mother,  and  shall  cleave  to  his  wife,  and  they  shall  be  two  in  one  flesh  > .     ^  ^^  ^°^  > 

These  words  clearly  establish  the  law  of  indissolubility. 

1.  The  terms  employed  express  it. 

2.  Our  Lord^s  interpretation  of  them  (Matth.  XIX,  3-8)  enforce  it. 
To  the  question  of  the  Pharisees  :  «  Is  it  lawful  for  a  man  to  put 
away  his  wife  for  every  cause  ?  »,  Christ  answered  :  c  Have  ye 
not  read,  that  He  who  made  man  from  the  beginning,  made  them 
male  and  female  ?  For  this  cause  shall  a  man  leave  father 
and  mother,  and  shall  cleave  to  his  wife,  and  they  shall  be  two  in 
one  flesh.  Therefore  now  they  are  not  two,  but  one  flesh.  What 
therefore  God  hath  joined  together,  let  no  man  put  asunder  ».  But 


etudiee  tout  entiere  sicut  jacet,  et  non  par  morceaux  decoup^s,  die  accuse 
son  caractere  errone,  parce  qu'on  sent  de  quelle  maniere  la  premiere  par- 
tie  de  la  proposition  doit  etre  entendue  ;  cette  premiere  partie  sera  des 
lors  consideree  comme  servant  a.  justifier  le  divorce  >. 

I.   Revue  du  Clerge  Frangais,  1905,  vol.  43,  p.  419-420. 

3.  As  we  have  clearly  shown,  marriage  is  rightly  said  to  be  indissolu- 
ble by  the  natural  law,  though  this  indissolubility,  inasmuch  as  it  excludes 
restricted  dissolubility,  rests  only  on  the  secondary  natural  law,  and  conse- 
quently is  not  absolute  and  beyond  all  dispensation. 


3o8  THE  INDISSOLUBILITY   OF  MARRIAGE 

when  the  Pharisees,  unwilling  to  acknowledge  defeat,  alleged  the 
bill  of  divorce,  Our  Lord  added  :  «  Moses  by  reason  of  the  hard- 
ness ot  your  heart  permitted  you  to  put  away  your  wives  ;  but 
from  the  beginning  it  was  not  so.  » 

3.  The  interpretation  of  the  Council  of  Trent,  Sess.  XXIV,  Doc- 
trina  de  sacramenio  matrimonii,  confirms  this  teaching  :  «  The  first 
parent  of  the  human  race,  tender  the  inspiration  of  the  Holy  Spirit, 
declared  the  perpetuity  and  indissolubility  of  the  bond  of 
marriage,  when  he  said  :  This  now  is  bone  of  my  bones,  and  flesh 
of  my  flesh  ;  wherefore  a  man  shall  leave  father  and  mother, 
and  shall  cleave  to  his  wife,  and  they  shall  be  two  in  one  flesh  >. 
b)  according  B.  In  the  New  Testament,  Christ  proclaimed  the  same  princi- 
gelicaUaw.  P^^j  ^^^  moreover  brought  back  to  its  pristine  holiness  the  pri- 
mitive law  of  marriage,  which  had  been  sensibly  relaxed  under 
the  Mosaic  dispensation. 

This  truth  is  clearly  contained  not  only  in  the  texts  which  we 
have  just  quoted,  but  also  in  Matih.,  V,  42,  XIX,  9  and  in  the 
parallel  passages  of  Mark,X,  11,  and  Luke,  XV,  18  ;  in  i  Cor.,  VII, 
10  and  II,  and  in  Rom.,  VII,  2  and  3.  The  Synoptics,  in  truth, 
repeatedly  affirm  that  the  man  who  puts  away  his  wife  and  takes 
another,  commits  adultery.  We  shall  see  this  yet  more  clearly 
below  in  n°  199,  where  we  shall  explain  these  texts  and  solve  the 
difficulty  contained  in  them.  St.  Paul  insists  that  the  wife  is  bound 
to  her  husband  as  long  as  he  lives,  and  that  she  becomes  free  only 
on  his  death  ;  apart  from  this  hypothesis,  if  she  is  separated  from 
her  husband,  she  must  either  lead  a  single  life  or  be  reconciled 
with  him. 

Paragraph  III.  DEROGATIONS  FROM  THE  LAW  OF 
INDISSOLUBILITY. 


derogation. 


t83 

This  law  is      Keeping  in  mind  the  explanations  that  we  have  given  in  n°  172, 

capable  of  ^^^^  ^^iq  principles  there  established,  it  is  evident  that  no  man,  nor 
even  God  himself,  can  dispense,  by  a  general  measure,  from  the 
law  of  indissolubility,  in  so  far  as  it  derives  from  the  primary  prin- 
ciples of  the  natural  law,  i.  e.,  so  as  to  permit  arbitrary  divorce, 
dependent  upon  the  mere  whim  of  the  parties. 

Furthermore,  no  purely  hur/ian  power  is  competent  to  dispense 
from  this  same  law,  in  so  far  as  it  derives  from  the  secondary 


THE  INDISSOLUBILITY   OF   MARRIAGE  309 

natural  law,  positively  confirmed  by  God.  No  human  authority, 
therefore,  is  empowered  to  dissolve  in  any  way  whatsoever  a  marri- 
age that  has  been  validly  contracted,  or  to  determine  before- 
hand reasons,  however  limited  they  may  he,  for  the  breaking  of  the 
conjugal  bond  ;  for,  human  authority  has  no  power  to  derogate 
either  from  the  secondary  natural  law  or  from  the  divine  law. 
But  divine  authority  can  permit,  even  by  a  general  dispensation, 
in  certain  well  definedlcircumsiances,  the  dissolution  of  the  marriage 
bond  ;  and  we  have  seen  that  this  divine  power  can  be  exercised 
either  directly  by  God  Himself,  or  mediately  through  the  agency  of 
the  Church,  acting  as  the  instrument  and  minister  of  God. 

Observe  that  in  the  case  of  the  Church  there  is  no  reason  to 
fear,  as  in  the  case  of  the  State,  an  abuse  of  power  or  an  exces- 
sive tolerance  in  the  matter  of  divorce,  exceeding  the  strictly 
prescribed  limits  ;  for,  the  Church  is  armed  with  divine  power 
and  directed  by  the  Holy  Spirit  ;  it  has  spiritual  weapons  that 
are  effective  in  another  way  than  human  means  for  overcoming 
the  passions  ;  moreover,  popular  opinion  has  little  or  no  influence 
on  its  decisions  ;  and  the  experience  of  twenty  centuries  stands 
as  a  proof  of  its  wisdom  and  firmness. 

We  will  now  explain  how,  and  to  what  extent,  God  has  dero- 
gated from  the  law  of  indissolubility. 

First  point.  Dissolution  of  the  marriage  bond  by  the 

ANCIENT   bill   OF  DIVORCE. 

484. 

In  accordance  with  the  rules  ot  Deuteronomy,  XXIV,  1-4,  a  Jew  was    Divorce  by 

permitted  to  repudiate  his  wife  by  means  of  a  writing  attesting  the  ,  .  j^-"/- 
repudiation  :  «  If  a  man  take  a  wife,  and  have  her,  and  she  find  not  favour 
in  his  eyes  for  some  uncleanness,  he  shall  write  a  bill  of  repudiation,  and 
shall  give  it  in  her  hand,  and  send  her  out  of  his  house.  And  when  she  is 
departed,  and  marrieth  another  husband,  and  he  also  hateth  her,  and 
hath  given  her  a  bill  of  divorce,  and  hath  sent  her  out  of  his  house  or  is 
dead,  the  former  husband  cannot  take  her  again  to  wife,  because  she  is 
defiled,  and  is  become  abominable  before  the  Lord  » . 

For  the  right  understanding  of  this  provision  the  following  observations 
must  be  made. 

1 .  It  is  here  a  question  of  the  dissolution  of  the  conjugal  bond ;  for, 
the   text    supposes   that   the  repudiated  wife  can  marry  again,  and  it 


3IO  THE  INDISSOLUBILITY   OF   MARRIAGE 

speaks  of  another  ^«s6a«i.  Christ  suggests  the  same  in  Matth.,  XIX,  8, 
where  He  says,  without  restriction,  that  the  bill  of  divorce  was  permitted 
by  Moses  ('). 

2.  We  must  look  upon  the  permission  as  given,  not  for  arbitrary,  but 
only  for  restricted  divorce,  derogating  from  the  secondary  natural  law,  not 
from  the  primary.  For  the  husband  had  not  the  right  of  putting  away  his 
wife  at  will,  but  for  a  well  defined  reason  :  for  some  «  uncleanness  » ,  as  the 
text  says  ;  the  Hebrew  word  employed  here  signifies  nakedness.  The 
scope  and  exact  meaning  of  this  word  were  formerly,  and  still  are,  the 
occasion  of  a  good  deal  of  controversy  ;  some,  following  the  School  of 
Schammai,  regarded  it  as  signifying  a  moral  stain,  especially  adultery  (*) ; 
while  others,  with  the  School  of  Hillel,  understood  it  of  some  bodily 
defect,  even  a  slight  and  futile  one  (').  The  controversy  still  exists  among 
the  Jews  (*).  Moreover,  i)^?^i^ro«o»y,XXII,i3-i9  and  29,places  restrictions 
on  this  permission.  Cf.  Realencykl.,  V,  p.  744  s. ;  Luckock,  o.  c,  p.  174  ; 
and  Engert,  o.  c,  p.  50  s.  The  last  named  author,  on  page  49,  speaking  of 
the  prohibition  against  the  first  husband  taking  back  his  repudiated  wife, 
when  she  has  contracted  a  second  marriage  in  the  interval,  interprets  this 
provision  as  a  restrictive  clause  of  repudiation  (•»). 


I.  Theol,  Mechl.,0.  c,  no  55  ;  Palmieri,  o.  c,  p.  127-136.  Luckock,  o.  c,  p. 
24  ss.,  maintains  the  contrary.  See  Villien,  Divorce,  1.  c.,  col.  1459,  who 
rightly  remarks  that  the  text  of  Deuteronomy  did  not  introduce  the  custom  of 
repudiation,  but  only  regulated  and  tempered  an  existing  custom.  Cf.  also  Blau, 
o.  c.,  p.  16. 

3.  Adultery,  according  to  the  prescription  of  the  law  (Lev.,  XX,  10),  was 
punished  with  death,  but  this  sentence  was  not,  as  a  rule,  carried  out.  Cf.  Blau, 
o.  c,  p.  25,  where,  as  also  in  the  following,  the  author  shows  that  adultery 
was  a  cause  of  repudiation,  and  the  only  one  according  to  the  popular  practice 
and  the  School  of  Schammai  being  in  conformity  with  it. 

3.  It  seems  certain  in  any  case  that  the  Jews  dealt  with  the  interpretation  of 
this  text  in  such  a  way  that  at  the  close  of  the  Mosaic  law  a  much  less  grave 
reason  sufficed  for  the  repudiation  of  a  wife,  than  at  the  period  when  the  law  of 
Deuteronomy  was  in  full  force.  This  was  stern,  as  appears  from  the  restric- 
tions that  it  placed  on  the  power  that  it  granted  ;  but  the  term  employed  to 
designate  the  sufficient  cause,  «  erwath  dabhar  »  is  susceptible  of  various  signifi- 
cations. As  Engert,  1.  c,  p.  49,  observes,  it  was  «  ein...  alles  mogliche  seinem 
Wortlaut  nach  in  sich  fassender  Begriff  >.  Consult  also  Scherer,  o.  c,  II,  p.  542, 
n°  5 ',  Nowack^s  Handcommentar  zum  alien  Testam. —  Das  Deuteron.,  Steuerna- 
GEL,  Gottingen,  1898,  on  this  passage. 

4.  As  to  both  Schools  and  their  doctrine  concerning  the  cause  of  repudiation, 
see  Blau,  o.  c,  p.  31  ss. 

5.  See  also  RoEDENBECK,  o.  c,  p.  5  ;  Watkins,  o.  c,  p.  52  ss.  The  code  of 


THE  INDISSOLUBILITY   OF  MARRIAGE  3 II 

The  reason  why  God  dispensed  the  Jews  from  the  strict  lawof  indisso- 
lubiUty  was  their  hardjtess  of  heart.  St.  Thomas,  Suppl.,  qu.  LXVII,  art. 
2,  observes  :  «  It  was  not  for  the  attainment  of  a  greater  good,  as  in  the 
case  of  the  dispensation  permitting  polygamy,  but  to  prevent  an  evil,  viz., 
wife-murder  to  which  the  Jews  were  prone  ».  See  also  Gratian,  cap.  7,  C. 
XXXI,  q.  I. 

Second  point.  Dissolution    of  the  conjugal  bond  by 
the  power  of  the  sovereign  pontiff. 

Proposition.  The  Sovereign  Pontiff  has  the  power  to  dissolve  a 
marriage  ratum  non  consummatum  {and,  a  fortiori,  a  marriage 
legitimum  non  consummatum) ;  moreover,  the  more  probable  opinion 
attributes  to  him  also  the  power  of  dissolving  marriage  legitimum 
consummatum,  on  the  conversion  of  one  of  the  parties,  and  also  mar- 
riage consummatum  et  ratum  ('). 

Explanation  and  demonstration. 

I.  As  regards  marriage  ratum  non  consummatum.  Thesovereign 

A.  The  existence  of  this  power  is  nolonger  in  doubt  a.t  the  power  to  dis- 
present  day,  since  the  Pope  exercises  it  readily  and  without  any  solve  marrz- 
hesitation  (^),  which  practically  amounts  to  teaching  the  reality  of  non  consutn- 
It  o. 

B.  Nature  and  exercise  of  this  power.  .„^ 

186. 

1.  On  the  one  hand,  the  Church,  in  dissolving  marriage  ratum,    This  is  a 
as  we  have  said  above  in  n°  172,   does  not  exercise  a  power  that  only'minS- 
rial  power, 

Hammurabi  also  permitted  repudiation,  but  subject  to  certain  restrictive  clauses, 
spoken  of  by  Scheil,  par.  137-143  and  149. 

1.  See  above,  no  86. 

2.  Cf.  the  different  examples  quoted  by  De  Becker,  De  Matr.,  p.  418-419,  in 
note. 

3.  See  Palmieri,  o.  c,  p.  210  s.  ;  Wernz,  o.  c,  IV,  p.  1024,  in  the  note  ton" 
698,  in  which,  following  Suarez,  he  explains  the  probatory  force  of  this  practice. 

This  Papal  power  was  already  universally  acknowledged  in  the  time  of  Bene- 
dict XIV,  as  that  Pope  himself  declares  in  his  Quaest.  can.,  qu.  279  :  «  Hence- 
forth there  can  be  no  question  as  to  the  power  of  the  Sovereign  Pontiff  in  the 
matter  of  dispensing  from  a  marriage  ratum  et  non  consummatum,  since  at  the 
present  day,  as  is  well  known,  the  affirmative  opinion  is  commonly  held  by  theo- 
logians and  canonists,  and  is  received  in  practice  ».  Cf.  Kutschker,  o.  c,  I,  p. 
323- 


312  THE  INDISSOLUBILITY   OF  MARRIAGE 

belongs  to  it  in  its  own  right,  but,  so  to  speak,  a  ministerial  and 
instrumental  power,  in  the  name  and  by  the  authority  of  God,  to 
whom  alone  it  belongs  to  dispense,  whether  mediately  or  immedi- 
ately, from  the  precepts  of  the  secondary  natural  law. 

On  the  other  hand,  the  power  that  the  Church  exercises  is 
nevertheless  a  real  power,  and  it  acts  authoritatively  in  loosening 
the  bond  of  marriage  ratum  non  consummatum,  by  virtue  of  the 
divine  authority  conferred  upon  it  ministerially,  within  the  pre- 
scribed limits  (*).  On  this  subject  consult  Sanchez,  o.  c,  1.  II, 
Disput.  14,  n°  6,  who  at  the  same  time  solves  the  difficulty  arising 
from  the  sacramental  nature  of  marriage  (*). 
and  in  its  ex-     2.  The  lawful  exercise  of  this  power  requires  ; 
^^es^^aluffi^-'      ^/  ^  sufficient  and  proportionate  reason,  as  a  logical  consequence  of 
cient  reason,  the  nature  of  the  law  in  question.  For,  the  Sovereign  Pontiff  does 
not  act  in  this  matter  on  his  own  proper  authority,  but  exercises  a 
delegated  and  ministerial  power  ;  whence  it  follows  that  an  unjus- 
tifiable dispensation  would  be  null  and  void  ('). 
as  well  as  a       h/  a  complete  and  juridical  proof  of  ncn-consummation. 
^"i^oo^f         '^^^  absence  of  consummation  may  be  established  either  by 

of  non-con-   corporal  inspection,  or  by  the  proof  known  as  ex  coarctata  (*),  or  by 
summation. 

1.  Quite  recently  certain  erroneous  ideas  as  to  this  papal  power  have  come 
to  light.  Cf.,  on  the  point,  Fahrner,  o.  c.  ,  p.  337  s. 

2.  «  Dum  dispensat  (S.  Pont.)  in  matrimonio  rato^  id  facit  destruendo  funda- 
mentum  contractus  humani... Licet  matrimonium  ratum  sit  sacramentum,pendet 
tamen  ex  contractu  humano  tanquam  ex  fundamento  ». 

3.  Cf.  Fahrner,  o.  c,  p.  331-334  ;  Kutschker,  o.  c  ,  I,  p.  312  ss.  ;  Gasparri, 
o.  c  ,  II,  n°  1081  (the  last  named  gives  his  authorities  and  enumerates  some  of 
the  sufficient  reasons);  Sanchez,  o.  c,  II,  Disp.  15,  no  6;  Schmalzgrueber, 
In  I.  IV  Decret.,  XIX,  no  51.  Read  also  what  we  say  below,  no  379,  viz.,  that  one 
of  the  causes  admitted  in  practice  is  doubtful  impotency,  or  impotency  that  is 
only  temporary,  but  difficult  to  cure. 

4.  For  the  TpTooi  ex  coarctata  it  is  necesary  to  show  that  the  parties,  after  the 
marriage,  have  not  been  unaccompanied  for  an  instant,  or  at  least  that  they 
have  been  so  situated  that  it  was  impossible  for  them  to  establish  conjugal  rela- 
tions. Cf.  Coll.  Brug.,  t.  XIII,  p.  122  s.  ;  Canon.  Contemp.,  1908,  p.  155  s.,  ubi 
narratur  matrimonium  aliquod  fuisse  dissolutum  qua  non  consummatum,  licet 
partes  fuerint  in  eodem  toro,  quia  brevi  post  matrimonium  mulier  peperit, 
viro  ignorante  ejuspraegnantiam,  quam  sane  advertisset  si  uxorem  cognovisset ; 
item  Anal,  eccl.,  1904,  p.  120,  ubi  exponitur  causa,  in  qua  constitit  de  non  consum- 
matione  ex  eo  quod  sponsa,  ipsa  nuptiarum  nocte,  inter  choreas  et  festivitates, 
pepererit. 


THE  INDISSOLUBILITY   OF  MARRIAGE  313 

the  testimony  of  the  parties  ('),  corroborated  by  that  of  seven  wit- 
nesses on  either  side  (septima  manus)  (-).  The  proof  must  be  made 
juridically,  by  an  ecclesiastical  judgment  in  accordance  with  the 
prescriptions  of  the  law  (*). 

When  once  the  decree  of  the  Sovereign  Pontiff,  dispensing 
from  a  marriage  not  consummated,  has  been  pronounced,  the 
marriage  is  dissolved,  and  the  parties  are  severally  at  liberty 
to  marry  again,  unless,  as  sometimes  happens,  especially  in 
the  case  of  suspected  impotency,  the  judgment  carries  with  it 
a  prohibition  to  do  so  without  first  consulting  the  Holy  See  (*). 

The  historical  evolution  which  the  exercise  of  this  power  has  under-  Historical 
gone  dates  from  the  time  of  Alexander  111  (1159-1181).  This  was  the  period  ^^^^-^  i>apal 
power. 


r.  Cf.  Les  Conferences  de  Paris,  III,  p.  143  s. 

2.  Recourse  is  had  to  the  septima  manus  for  the  purpose  of  attesting  the  vera- 
city and  credibility  of  the  husband  and  wife.  There  are  appointed  «  sept  temoins 
pris  du  cote  du  mari  et  sept  temoins  pris  du  cote  de  la  femme,  ayant  pour  mis- 
sion de  d^poser  chacun  en  faveur  de  I'epoux  qui  les  a  designes.  Ces  temoins  sont 
choisis  parmi  les  plus  proches  parents  :  le  pere,  la  mere,  les  freres,  soeurs, 
oncles,  tantes,  neveux  ;  puis  les  nllies,  et  k  leur  defaut,  les  voisins,  amis  et  tou- 
tes  personnes  qui  ont  coutume  de  converser  avec  les  6poux  et  par  \k  meme  se 
trouvent  plus  au  courant  de  leurs  habitudes  et  de  leur  vie  intime  »  Bassibby, 
Le  Mariage  devant  ks  Tribunaux,no  353  s.  Cf.  the  Anal,  eccles.,  1908,  p.  377,  in 
the  causa  Versalien.  ;  Esmein,  o,  c,  I,  p.  261  ;  Schnitzer,  o.  c,  p  350 ;  ch.  3,  C. 
XXXIII,  I.  See  also  Lega,  o.  c,  IV,  n°s  460  and  461  ;  he  observes  that  the  word 
manus  (hand)  is  taken  here  as  the  symbol  of  faith  or  of  loyalty,  just  as  it  is  the 
custom  to  extend  the  hand  in  taking  an  oath  and  to  place  it  on  the  book  of  the 
Gospels ;  see  also  the  same  author,  n"  477.  This  kind  of  corroborative  evidence 
took  the  place  of  the  ancient  proof  by  lukewarm  or  cold  water  and  by  hot  iron. It 
is  employed  only  in  cases  of  impotency  or  of  non-consummation.  Cf.  Bassibey, 
o  c,  no  356. 

3.  The  general  procedure  is  described  later,  where  we  speak  of  Ma^rimoww/ 
Procedure.  For  the  special  formalities  concerning  corporal  inspection  and  the 
appointment  of  experts,  consult  Bassibey,  o.c,  no*  403-438  ;  Lega,  o.  c,  IV,  nos 
464  s.;  Pierantokelli,  o.  c,  II,  p.  55-88.  This  author  gives  a  detailed  description 
of  all  the  steps  to  be  taken  in  cases  of  non-consummation.  See  also  below,  n" 

351- 

4.  In  this  last  case,  the  prohibition  constitutes  an  impediment  Vetitum  Bccle- 
siae,  which  is  merely  of  a  prohibitory  nature.  Cf.  Bassibey,  o.  c,  no  405.  If 
the  party  falling  under  the  prohibition  wishes  to  marry,  or  to  take  a  virgin  to 
wife,  the  party  so  wishing  must  first  obtain  the  permission  of  the  S.  Congreg., 
or  the  Venia,  as  it  is  called,  which  is  only  granted  after  a  fresh  corporal  inspec- 
tion and  the  receipt  of  a  satisfactory  report  from  the  experts. 


314  THE  INDISSOLUBILITY   OF  MARRIAGE 

of  the  celebrated  controversy  between  the  Schools  qf  Bologna  and  Paris  (') 
on  the  nature  of  marriage,  to  which  we  have  alluded  above  in  n°  60.  The 
doctors  of  Bologna  taught  that  unconsummated  marriage,  being  only  an 
inceptive  marriage,  is  not  as  yet  a  sacrament,  and  that  consequently 
it  is  dissoluble  for  a  variety  of  reasons  (^) ;  they  maintained  that  the  copula 
alone  finally  conferred  on  it  the  sacramental  character  and  indissolubility. 
The  Doctors  of  Paris,  on  the  other  hand,  attributed  the  sacramental  digni- 
ty to  unconsummated  marriage,  contracted  by  mutual  consent  alone,  and 
claimed  for  it  an  absolute  indissolubility  (3). 

Alexander  III,  when  he  was  as  yet  but  Magister  Rolandus,  had,  with 
all  the  School  of  Bologna,  upheld  the  copulatheoria,  especially  in  his 
Summa  (*).  But,  on  his  elevation  to  the  Papacy,  he  adopted  an  interme- 
diate theory,  on  the  one  hand,  granting  to  unconsummated  marriage  the 
quality  of  a  real  marriage  and  of  a  sacrament,  and,  on  the  other  hand, 
refusing  it  the  absolute  indissolubility  climaed  for  it  by  the  School  of 
Paris.  On  one  side,  therefore,  in  opposition  to  the  School  of  Bologna,  he 
decreed  in  cap.  3,  X,  IV,  4,  that  unconsummated  marriage  could  not  be 
dissolved  by  a  subsequent  consummated  marriage  {■'),  and  imposed  this 
solution,  «  though  »  as  he  says,  «  some  think  otherwise,  and  even  some 
of  our  predecessors  have  sometimes  decided  otherwise  ».  Moreover, 
he  clearly  admitted  the  distinction  made  by  Peter  Lombard  between 
sponsalia  de  praesenti  and  sponsalia  de  fiUuro,  that  is  to  say,  between 
marriage  and  betrothment,  properly  so  called  («).  But  on  the  other 
side,  against  the  School  of  Paris,  he  decreed  that  non-consummated 
marriage  is  dissoluble,  especially    on  account  of  a    vow  (')  and  subse- 


1.  This  celebrated  controversy  had  a  notable  effect  on  the  development  of 
matrimonial  law.  On  this  subject  see,  besides  what  we  have  said  above, 
Farhner,  o.  c.,  p. 123-146  ;  Esmein,  o.  c.,  I,  p.  95-130 ;  Sehling,  Die  IVirkungen, 
P-  33-56. 

2.  These  reasons,  according  to  Gratian,  were,  among  others,  a  vow,  fornica- 
tion, and  especially  a  subsequent  consummated  marriage. 

3.  They  distinguished  between  sponsalia  de  futuro,  as  they  said,  and  sponsalia 
d6  praesenti  (or  the  actual  matrimonial  contract),  and  applied  to  the  former 
only,  the  different  causes  of  dissolution  which  the  Doctors  of  Bologna,  who  did 
not  make  this  distinction,  admitted  in  the  case  of  marriage  ratum  etnon  consutn- 
matum.  See  above  n«>  60. 

4.  Thus,  in  the  case  of  unconsummated  marriage,  he  admitted,  among  other 
causes  of  dissolution,  a  vow,  subsequent  affinity,  insanity,  but  not,  like  Gratian, 
a  subsequent  consummated  marriage.  Cf.  Fahrner,o.  c,  p.  174,  185  s. 

5.  Likewise  c.  4  (6)  and  5  (7)  Compil.  I,  IV,  4. 

6.  C.  6  (8),  Comp.  I,  IV  4. 

7.  C.  2  and  7,  X,  III,  33  ;  but  compare  with  c.  5  (7),  Comp.,  I,  IV,  4. 


THE   INDISSOLUBILITY    OF   MARRIAGE  315 

quently  supervening  affinity  (•),  at  least  when  it  is  public  ;  in  these  two 
cases  he  permitted  dissolution  and  the  contracting  of  another  alliance, 
provided  the  former  marriage  had  not  been  consummated.  Finally  he 
expressly  declared  that  the  indissolubility  of  which  Christ  speaks  in  the 
Gospel  concerns  only  the  consummated  marriage  (-). 

Observe  that  Alexander  III,  m  establishing  this  discipline,  makes  it 
clear  that  he  looks  upon  non-consummated  marriage,  with  regard  to  its 
dissolubility,  as  subject  to  the  power  and  jurisdiction  of  the  Church,  that  he 
recognises  that  the  Church  has  the  power  of  disciplinary  intervention 
in  the  causes  of  dissolution,  and  of  deciding  as  to  the  expediency  of 
restricting  or  extending  them. 

How  can  we  otherwise  explain  his  action  ?  In  the  doubts  proposed  as  to 
the  dissolution  of  non-consummated  marriage  he  words  his  decision 
with  «  it  seems  more  safe...  more  expedient  »  (') ;  —  for  the  dissolution  of 
such  a  marriage  he  appeals  to  the  judgment  of  the  Church  (*) ;  —  in 
questions  of  subsequently  supervening  affinity  he  restricts  the  power  of 
dissolving  the  marriage  to  the  case  in  which  the  matter  has  become 
public  ;  —  in  certain  countries  he  sometimes  refuses  dissolution,  while  he 
permits  it  in  others  on  the  selfsame  grounds,  having  regard  to  the  diver- 
sity of  customs  (^)  ;  —  he  does  not  boggle  at  giving  decisions  that  he 
knows  and  acknowledges  to  be  contrary  to  those  of  his  predecessors  (c. 
3,  X,  IV,  4). 

In  his  turn  Innocent  III  abolished,  as  a  cause  of  divorce,  affinity  super- 
vening after  marriage,  though  it  had  been  admitted  as  such  by  Alexander 
III,  and  moreover  expressed  the  wish  that  the  vow  should  also  lose  its 
dissolving  power  («)  ;  finally  Urban  III  admitted,  as  a  sufficient  cause, 
leprosy  {^),  rejected  by  Alexander  III  and  Innocent  III  (*). 


I.  C.  3,  X,  IV,  13. 
2   C.  7,  X,  UI,  32. 

3.  C.  5  (7),  4  (6),  Comp.  I,  IV,  4. 

4-  C.  5  (7),  Comp.  I,  IV,  4  :  «  since...  the  separation  ought  not  to  be  made 
without  the  judgment  of  the  Church  >. 

5.  C.  2,  X,  IV,  15. 

6.  C.  14,  X,  III,  33  (Friedberg  ed.)  :  in  this  passage  Innocent  III  seems  to 
lean  to  the  expediency  of  maintaining  the  absolute  indissolubility  of  marriage 
even  when- unconsummated,  and  to  admit  its  dissolution  by  vow  only  because 
he  does  not  wish  «  suddenly  to  desert  the  course  followed  by  his  predecessors 
in  this  matter  ». 

7  Cf.  Fahrner,  o.  c,  p.  196. 

8.  Note  also  Innocent  Ill's  way  of  speaking  about  the  power  of  a  vow  to 
dissolve  a  matrimonium  ratum,  c.  14,  X,  III,  33  (Friedberg  ed.),  and  compare 
with  Fahkner,  o.  c,  p.  195. 


3l6  THE  INDISSOLUBILITY  OF  MARRIAGE 

It  is  true  that  there  exists  no  writing  of  Alexander  III  or  of  Innocent  III 
expressly  mentioning  this  papal  power  of  dissolving  unconsummated  mar- 
riage (') ;  but  their  whole  course  of  action  shows  that  the  dissolubility  of 
the  marriage  bond  depends,  within  certain  fixed  limits,  on  the  regulations 
of  the  Church,  as  well  as  the  greater  or  lesser  latitude  allowed  with  regard 
to  the  causes  of  divorce.  Consequently  the  practice  of  the  Church  shows 
that  the  Sovereign  Pontiff  has  the  power  of  dispensing  from  the  marriage 
in  question. 

From  the  beginning  of  the  XIII '^  century,  several  authors  undertook  the 
defense  of  this  theory  in  express  terms,  contrary  to  the  opinion  held  by 
many,  and  especially  by  the  theologians .  Later,  from  the  early  years  of 
the  XV'h  century,  we  have  acts  of  the  Sovereign  Pontiffs,  e.  g.,  of  Martin 
V  and  Eugenius  IV,  which  show  the  exercise  of  this  power  in  full  play  ; 
and  from  the  beginning  of  the  XVI "^  century,  the  Church  made  yet  more 
frequent  use  of  this  power,  and  was  supported  therein  by  the  ever  increas- 
ing number  of  doctors  who  maintained  it,  until  at  last  it  was  universally 
admitted  (2). 

An  account  of  the  development  of  this  doctrine,  together  with  the  argu- 
ments employed  on  either  side  by  writers  who  lived  at  the  time  of  the 
controversy,  is  given  by  Fahrner,  o.  c,  pi,  p.  208-215  and  p.  316-341  ; 

see  also  Esmein,  o.  c,  I,  p.  124-135. 
188. 
The  mare        II.  We  now  comc  to  marriage  legitimum  consummatum  and 
probable       . 
opinion  attri-  ^^  marriage  CONSUMMATUM  ET  RATUM. 

outcstothe       The  more  probable   opinion    holds  that  the  Pope  has  also   the 

power  of  dis-  power  of  dissolving  these  two  kinds  of  marriage,  marriage  con- 

^^aJeYeTiU-^^^^^^^^^^'^  ^^  /'aiww  and  marriage  legiiimum  consummatum  (3) ;  pro- 

mum  consim-  vided  that,  in  the  latter  case,    one  of  the  parties  has  become 

consumma-    subject  to  the  jurisdiction  of  the  Church  by  Baptism. 

turn  et  ratmn.      The  reason  of  this  opinion  is  again  to  be  found  in  the  practice 

of  the  Church,  which  by  its  action  seems  absolutely  to  attribute 

this  power  to  itself.  Without  this,  its  way  of  acting  would  be 

inexplicable. 

As  long  as  unbaptized  persons,  validly  married,  have  not  con- 
summated their  marriage  after  their  mutual  conversion,  it  happens 
that  Rome  dissolves  such  a  marriage  and  forthwith  permits  new 


1.  Nevertheless,  in  c.  2,  X,  IV,  13,  in  the  concession  of  remarriage,  dispensation 
is  mentioned.  See  also  Gillmann,  Zur  Geschichte  der  Kanon.  Ehesclteidung,  in 
Der  Katholik,  1904,  t.  29,  p.  209. 

2.  See  the  text  of  Benedict  XIV,  given  in  n"  185. 

3.  See  above  no  91. 


THE  INDISSOLUBILITY   OF  MARRIAGE  317 

alliances  for  a  variety  of  causes  that  are  not  provided  for  else- 
where, and  especially  where  the  conditions  required  for  the 
Pauline  privilege  are  not  verified,  as  we  shall  show  below,  in 
n°  196  (•). 

Moreover,  it  appears  from  ecclesiastical  writings,  that  marriage 
ratum  et  consumnuiium  is  the  otily  one  that  is  considered  as  abso- 
lutely indissoluble  and  incapable  of  ecclesiastical  dispensation.lt  is 
thus  that  Alexander  III,  c.  7,  X,  III,  32,  when  he  permitted  a 
husband,  whose  wife  had  entered  religion,  to  marry  again  during 
the  life  of  his  former  wife,  justified  his  action  by  saying  that  the 
words  of  Christ  inculcating  absolute  indissolubility  applied  only 
to  marriage  ratiim  consummatum  (*). 

Now,  of  the  two  kinds  of  marriage  that  we  are  at  present 
considering,  neither  the  one  nor  the  other  is  ratum  et  cofistimma- 
ium.  The  one,  the  marriage  conswrnnaUim  ei  ratum,  became  ratum 
by  the  baptism  of  the  two  parties,  but,  having  thus  become  ratum, 
it  is  assumed  that  it  has  not  as  yet  been  consummated  since  the 
baptism  took  place.  The  other,  the  marriage  legiiimum  consum- 
matum, does  not  pass  from  the  category  of  simply  legitimate 
marriages  by  the  baptism  of  one  only  of  the  parties.  The  baptism 
of  both  is  necessary  for  that. 

Third  point.  Dissolution  of  the  conjugal  bond  by 

RELIGIOUS  profession. 

Proposition.  Solemn  profession,  in  virtue  of  the  ecclesiastical  law, 
dissolves  marriage  ratum  non  consummatum  (as  well  as  marriage 
legitimum  non  consummatum) ;  but  it  is  a  disputed  point  if  it  has  the 
same  efficacy  with  respect  to  marriage  legitimum  consummatum  and 
marriage  consummatum  that  subsequently  becomes  ratum. 


I.  Consult  the  first  case  proposed  to  the  C.  S.  O.  and  solved  30  April  1908,  to 
be  found  in  the  Coll.  Brug.,  t.  XIV,  p,  241  s. 

3.  «  Sane  quod  Dominus  in  Evangelic  dicit,  non  licere  viro...  uxorem  dimit- 
tere,  intelligendum  est,  secundum  interpretationem  sacri  eloquii,  de  his  quorum 
matrimonium  carnali  copula  est  consummatum  ».  In  the  whole  chapter  it  is  a 
question  of  the  marriage  of  Christians. 


3i8 


THE  INDISSOLUBILITY   OF  MARRIAGE 


189. 

Marriage 
ratutn  non 
consumma- 
tum  is  dis- 
solved 


by  solemn 
profession. 


Explanation  and  demonstration. 

I.  We    will  take  first   marriage  ratum    non    consummatum. 

1 .  Marriage  ratum  non  consummatum  is  dissolved  by  solemn 
religious  profession,  and,  a  fortiori^  marriage  legUimum  non  con- 
summaium,  since  this  establishes  a  still  weaker  bond  of  union.  It 
does  not  greatly  matter  whether  the  party,  who  thus  enters  reli- 
gion, lawfully  left  the  conjugal  abode  under  the  privilege  accord- 
ed to  the  newly  married  during  the  first  two  months  of  the  marri- 
age, or  whether  that  party  left  unlawfully,  after  the  expiration 
of  the  privileged  period. 

On  the  other  hand,  marriage  ratum  is  no  longer  dissoluble 
when  once  it  has  been  consummated,  no  matter  how  the  con- 
summation may  have  taken  place,  even  if  the  husband  has  em- 
ployed violence  towards  his  wife  during  the  privileged  two  months 
of  which  we  have  just  spoken.  Without  doubt  in  such  a  case 
the  wife  has  the  option  of  entering  religion,  even  against 
the  will  of  her  husband,  and  of  taking  solemn  vows  therein  ;  but 
that  does  not  dissolve  the  marriage,  and  the  husband  thus 
left   to    himself  cannot  contract  a  new  marriage  ('). 

2.  Solemn  profession  alone  possesses  this  efficacy.  Consequent- 
ly neither  a  vow  to  enter  Religion,  nor  the  actual  entering  of 
it,  nor  the  profession  of  simple  vows,  nor  the  reception  of  Sacred 
Orders  suffices  for  the  purpose  ;  only  solemn  profession,  in 
a  regular  Order  strictly  so  called,  can  bring  about  this  result  ('). 

This  efficacy  of  solemn  vows  is  legally  sanctioned  in  the 
Decretals  by  Alexander  III,  c.  2  (^)  and  7,  X,  III,  32,  and  by 
Innocent    III,    c.    14,    ibid.    ;   it    is    taught,    and    confirmed   by 


I.  Cf.  Wbrnz,  o.  c,  p.  1029  s.  ;  Fahrner,  o.  c,  p.  303-304;  Rosset, 
o.  c,  I,  no«  684-693  ;  ScHMALZGRUEBER,  on  I.  Ill,  Deer.,  in  tit.  32.  n°^ 
11-14. 

3.  For  the  distinetion  between  simple  and  solemn  vows,  see  Vermeersch, 
De  Religiosis  Inslitutis  et  Personis,  II,  y^  ed.,  Bruges,  1904,  p.  12  s.  ;  De  Bra- 
bandere-Van  Coillie,  o.  c.,  I,  n  565  and  the  authors  quoted  there. 

3.  «  Varum  post  consensum  legitimum  de  praesenti,  licitum  est  alteri, 
altero  etiam  repugnante,  eligere  monasterium,  sicut  etiam  sancti  quidam  de 
nuptiis  vocati  fuerunt,  dummodo  carnalis  commixtio  non  intervenerit  inter 
eos,  et  alteri  remanenti,  si  commonitus  continentiam  servarenoluerit,  licitum 
est  ad  sccunda  vota  transin,  quia,  cum  non  fuissent  una  caro  simul  effecti, 
satis  potest  unus  ad  Deum  transire  et  alter  in  saccule  remanere  ». 


THE  INDISSOLUBILITY  OF  MARRIAGE  319 

anathema  in  Sess.  XXIV,   can.  6,  of  the  Council   of  Trent  ('). 

There  are   several  other  ecclesiastical  documents  to  the  same  to  the  exclu- 
effect,    especially  the  declaration  of  Pius   IX,   of  25  Jan.  1861,    simple  vow, 
decreeing  :    «   that   marriage  ratum  et  non  consummatiim  is  dis- 
solved only  by  solemn  profession,  and  not  by  simple    religious 
vows  »   (*).   Benedict  XIV,  De  Synodo  dioec,  XIII,  c.    12,  n"  9, 
holds  the   same  doctrine  ('). 

Hence  it  follows  that  the  simple  vows  taken  in  the  Society  of 
Jesus  after  two  years'  noviciate,  do  not  in  any  way  dissolve  a 
marriage  m^«w.  Certain  authors  formerly  maintained  the  contrary, 
invoking  the  Constitution  of  Gregory  XIII,  of  the  25  May  1584, 
Ascendettte  Domino ;  but  this  Pontifical  document,  if  it  gives  to 
the  above  mentioned  vows  the  force  of  a  dirimejit  impidiment  in 
relation  to  future  marriage,  does  not  in  any  way  attribute  to 
them  the  power  of  dissolving  a  marriage  already  contracted  (*).  The 


1.  «  Si  quis  dixerit  matrimonium  ratum  non  consummatum,  per  solem- 
nem  religionis  professionem  alterius  conjugum  non  dirimi,  anathema  sit  ». 
Fahrner,  o.,  c,  p.  295-396,  shows  how  the  Protestants  gave  the  Council  occa- 
sion to  pass  this    decree. 

2.  Fahrner,  o.  c,  p.  195,  on  this  point  wrongly  invokes  the  confirma- 
tory evidence  of  Boniface  VIII,  cap.  unic,  tit,  15,  III,  in  the  VI  Deer., 
who  decrees  that  only  a  solemn  vow,  to  the  exclusion  of  a  simple  vow, 
is  capable  of  «  annulling  marriage  subsequently  contracted  (post  contrac- 
tum)  y.  For,  the  whole  context,  no  less  than  its  comparison  with  the  cap. 
unic.,  tit.  VI,  Extrav.,  of  John  XXII,  shows  that  the  Pope  is  speaking  of 
marriage  posterior,  not  anterior  to  the  vow.  Moreover,  if  Boniface  had  in  view 
marriage  anteriorly  contracted,  his  declaration  would  also  include  the  vow 
taken  in  the  reception  of  Orders  ;  but  this  cannot  be  upheld,  as  we  shall 
show  later,  in  nos  284  and  285. 

3.  «  Animadvertendum  tamen  est  privilegium  hoc  esse  concessum  tantum- 
modo  religlosae  profession!,  emissae  in  aliqua  ex  approbatis  Religionibus,  in 
quibus,  nimirum  emissa  castitatis,  paupertatis  et  obedientiae  vota,  solemnium 
vim  et  naturam  obtinent ;  nunquam  vero  profession!  emitti  solitae  in  quibusdam 
piarum  mulierum  coetibus...,  quarum  vota,  non  inter  solemnia,  sed  inter 
simplicia  reccnsentur,  juxta  constantem  atque  conformem  sententiam  tribuna- 
lium  tum  Rotae,  turn  Congregationis  Concilii. 

Benedict  XIV  also  adds,  in  the  same  passage,  that  it  is  a  question  of  solemn 
vows,  including  the  vow  oi perfect  chastity,  so  that  marriage  ratum  is  not  dissolv- 
ed even  by  solemn  profession  in  the  military  orders,  «  in  quibus  non  indefinita 
sed  plerumque  conjugalis  castitas,  vel  a  secundis  nuptiis  abstinentia  vovetur  ». 
Cf.  also  Feye,  De  Imp.,  n°  515. 

4.  See  below,  no  2S4  ;  Farhner,  o.  c,  p.  308-310;  Wernz,  o.  c,  IV,  p.  1030, 
n°  698;  Feye,  De  Imp,,  no  516;  Gasparri,  o.  c,  no  5746-1082. 


320  THE  INDISSOLUBILITY  OF  MARRIAGE 

VOWS  taken  by  religious  women  in  Belgium  and  France  have  no 
greater  efficacy,   seeing  that  they  are  not  admitted  as   solemn 
vows. 
and  of  To  be  more  precise,  neither  the  taking  of  Orders,  nor  the  vow 

^  ^^^ '  of  chastity  involved  therein,  suffices  to  dissolve  such  a  marriage, 
though  they  constitute  a  diriment  impediment  to  all  subsequent 
marriage.  This  is  clearly  taught  by  John  HXllfExtrav.,  cap. 
unic,  tit.  VI :  «  Desiring  to  put  an  end  to  an  old  controversy,... 
we  declare  by  this  present  decree  that  the  vow  solemnized  by  the 
taking  of  sacred  Orders  must  be  held  to  take  effect,  according  to 
the  canonical  laws,  as  a  diriment  impediment  of  marriage  to  be 
contracted  or  contracted  after  its  emission  ;  but  with  regard  to 
the  dissolution  of  marriage  previously  contracted,  even  of  marri- 
age not  consummated  as  yet  by  the  copula,  it  must  be  held  as 
of  no  effect,  for  neither  in  the  divine  law,  nor  in  the  sacred 
canons  do  we  find  that  established  ».  See  below,  n°  285. 

In  conclusion,  let  us  observe  that  marriage  is  dissolved  by  a 
solemn  vow  only  at  the  moment  the  profession  takes  place  ;  whence 
it  follows  that  the  partner  remaining  in  the  world  cannot  marry 
again  before  that  event  (').  Now,  the  canonical  law  of  the  19 
March  1857,  issued  by  the  S.  C.  super  Statu  Regularium,  pre- 
scribes a  full  year's  novitiate  before  the'taking  of  the  simple  vows, 
and  then  an  interval  of  three  years  before  the  solemn  profes- 
sion (*).  Nevertheless,  Pius  IX,  in  his  declaration  of  1861,  adds 
that  the  postulant,  whether  husband  or  wife,  may  have  recourse 
«  to  the  Holy  See  to  obtain  permission  to  take  the  solemn  vows 
without  delay  ».  Cf.  Feye,  De  Imp.,  n°  519. 

by  th&  merely      3.  The  whole  of  this  question  is  a  matter  of  ecclesiastical  law. 

ecdest^tca,  r^^^  Church  here  exercises  its  power,  not  in  its  own  name,  as 
when  it  promulgates  purely  ecclesiastical  laws,  but  in  the  name 
of  God,  as  being  the  minister  and  instrument  of  God,  as  we  have 


1.  The  partner  remaining  in  the  world  is  free  from  the  day  of  the  profession 
of  the  other  partner.  For  the  legal  proof  of  free  state,  a  certificate  of  the  profes- 
sion made  by  the  husband  or  wife  should  be  given  to  the  said  partner,  and  the 
dissolution  of  the  marriage  should  be  entered  in  the  register  of  marriages,  in 
the  margin  of  the  entry  attesting  the  celebration  of  the  marriage. 

2.  The  special  rule  of  the  Society  of  Jesus  does  not  admit  all  the  religious  ot 
the  Order  to  solemn  vows  ;  and  for  those  admitted,  it  requires  that  a  prolonged 
period  should  elapse  between  the  simple  and  solemn  vows, 


THE  INDISSOLUBILITY   OF  MARRIAGE  3^1 

explained  above  in  n°  172  (*).  Many  authors  are  in  error  on  this 
point,  and  deduce  from  the  natural  law  or  from  the  immediate 
divine  law  (*)  the  efficacy  of  solemn  profession  in  relation  to 
marriage. 

There  can  be  no  doubt  on  this  point :  for,  on  their  theory,  it  is 
impossible  to  explain  the  fact  that  only  solemn  vows  possess  the 
privilege  of  dissolving  marriage,  to  the  exclusion  of  the  simple 
vows.  Simple  profession  does  not  safeguard  the  religious  life 
less  than  solemn  profession  (^)  ;  and  this  solemnity  itself  comes 
only  from  the  purely  ecclesiastical  law  (*). 

Our  view  is  still  further  confirmed  by  the  historical  phases  of 
the  development  of  the  exercise  of  the  papal  dispensing  power 
in  this  matter  (see  above,  n°  187).  History  attests  that  the  vow 
has  been  admitted  as  a  cause  of  divorce  by  the  ecclesiastical 
authority  itsdf,  and  by  way  of  a  general  dispensation  for  all  cases 
of  marriage  ratum.  The  Church,  therefore,  held,  as  we  have 
observed,  that  the  indissolubility  of  such  marriages  was  subject 
to  its  jurisdiction  ;  and  it  judged  practically  that,  within 
certain  limits  and  for  a  legitimate  cause,  it  had  power  to  break 
the  bond  by  a  dispensation,  and  that,  either  in  a  particular  case 
or  by  a  general  measure ;  in  this  sense,  that  it  had  the  power 
to  detennine  the  circumstances  that  should  be  sufficient  in  law 
for  the  dissolution  of  the  marriage. 

We  can  thus  understand  how  Innocent  III,  cap.  14,  X,  III,  32 
(Friedberg  ed.),  seems  to  have  tried  to  abrogate  the  vow  as  a 
cause  of  dissolution,  as  he  did  in  fact  remove  from  the  number 


I.  As  we  said  then,  this  power  is  not  purely  ecclesiastical,  and  in  a  certain 
aspect  it  may  be  called  divine.  It  is  thus  that  Billot,  o.  c,  II,  p.  411,  says 
that  marriage,  in  the  case  in  question,  is  dissolved  by  the  mediate  divine  law 
consequent  on  the  exercise  of  thepowir  of  the  Keys. 

3.  The  various  opinions  of  authors  may  be  found  in  Fahrner,  o.  c,  p.  296- 
301 ;  and  Wernz,  o.  c,  n°  698,  notes  47-49. 

3.  Thus,  simply  professed  Jesuits  are  indubitably  true  religious,  no  less 
than  all  the  members  of  other  Orders,  when  once  they  have  taken  their 
simple  vows  ;  and  the  authoritative  judgment  of  the  Church  is  our  warrant 
for  this,  for  Leo  XIII  declares  that  it  is  so,  in  his  Constitution  Conditae  of 
the  8  Dec.  1900,  concerning  Orders  with  simple  vows. 

4.  Cf.  Boniface  VIII,  cap.  un.,  tit.  15,  III,  in  ¥1° : «  Considering,  therefore, 
that  the  solemnity  of  vows  was  introduced  by  the  sole  provision  of  the  Church...  ». 


323  THE  INDISSOLUBILITY   OF  MARRIAGE 

of  admitted  causes  the  affinity  subsequent  to  marriage,  accepted 
by  Alexander  III. 

The  refutation  of  the  arguments  put  forward  by  the  supporters 
of  the  contrary  opinion  (among  others  by  Palmieri,  o.  c,  p.  206) 
maybe  found  in  Fahrner,  1.  c.  ;  Wernz,  o.  c,  IV,  n°  698  and 
Billot,  o.  c,  p.  410  s.  This  last  named  author  gives  a  complete 
refutation  of  the  objection  drawn  from  the  fact  that  the  dissolu- 
tion  of  the  marriage  bond  by  religious  profession  is   the  object 
of  a  dogmatic  definition  by  the  Council  of  Trent.  This  objection, 
which,    at    first  sight,  appears   plausible,   is    answered    by    a 
.^^        distinction  ('). 
There  is  a        II.    We  now  come  to    marriage  legitimum   Consummatum, 
marria're     rendered  subject  to  the  Church  by  the  baptism   of  one   of  the 
legitimum    parties  :  and  also  to  marriage  consummatum  become  ratum  by 

consumma-     '^  .         _^    .     .  .  „  . 

turn,  and  con-  the  baptism  of  the  two  parties.  This  is  a  more  difficult  question. 

^'*7atum"*  ^^^  ^^  ^PP^y  ^^^  extend  to  such  marriages  the  privilege 
enjoyed  by  religious  profession  through  the  Church's  positive 
concession  ?  Certainly  we  cannot  do  so  unless  there  is  a  founda- 
tion for  it  in  some  positive  legal  provision.Now,no  certain  example 
of  a  dissolution  of  this  kind  is  known  to  exist ;  and  as  to  the  legal 
texts  that  recognise  in  solemn  vows  the  power  of  dissolving  a 
marriage  ratum,  they  ought  to  be  understood,  as  Wernz  says  (*), 


I.  The  object  of  the  infallibility  of  the  Church  is  twofold  :  the  principal 
object,  comprising  the  truths  contained  in  the  deposit  of  revelation,  whether 
explicitly,  or  implicitly  but  in  a  formal  manner ;  and  the  secondary  object, 
embracing  truths  that  have  not  been  revealed,  but  which  must  necessarily  be 
taught  in  order  to  keep  entire  the  deposit  of  revelation.  Accordingly,  it  may 
happen  that  a  truth  has  not  been  revealed  by  God,  but,  nevertheless,  rests  on 
the  infallible  teaching  of  the  Church,  and  is  therefore  matter  demanding  the 
assent  of  ecclesiastical  faith.  It  is  thus  that  the  dissolution  of  marriage  by 
religious  profession  may  result  from  the  ecclesiastical  law  and  at  the  same 
time  be  the  object  of  a  dogmatic  definition.  It  is  of  no  importance  that  the 
discipline  is  capable  of  change  in  this  respect,  and  that  the  Church  might 
subsequently  deny  to  religious  profession  the  efficacy  that  it  at  present  possess- 
es. For,  if  «  the  discipline  were  at  any  time  changed,  the  object  of  the  infallible 
definition  would  no  longer  exist ;  but  the  infallibility  would  remain  intact :  it 
would  always  remain  true  that  the  taking  of  vows,  of  which  the  Council  speaks, 
annulled  marriage  ».  Billot,  1.  c. 

a.  O.  c,  IV,  no  699,  where  the  different  authors  favouring  the  two  opinions 
are  given.  Cf.  n©  702,  note  72. 


THE  INDISSOLUBILITY   OF  MARRIAGE  ^^3 

of  marriages  «  called  ratum  in  ordinary  language,  and  not  of  that 
altogether  exceptional  class  of  marriages  ratum  that  have  been 
consummated  before  baptism.  The  extension  of  the  papal  privi- 
lege to  such  marriages  would  be  arbitrary  and  exaggerated  »  (*). 
However  that  may  be,  it  would  be  unlawful  in  this  case  to  act 
upon  an  opinion  favouring  dissolution,  without  first  consulting 
the  Holy  See. 

On  the  other  hand,  if  we  have  grounds  for  acknowledging  that 
the  Pope  has  power  to  dissolve  marriages  of  this  kind,  there 
seems  to  be  no  reason  for  denying  that  he  is  able  to  admit  also  so- 
lemn profession  as  a  cause  of  such  dissolution.  This  would  be 
simply  a  way  of  dispensing  by  a  general  measure,  analogous  to 
that  which  the  Church  has  introduced  in  the  case  of  marriage 
ratum  properly  so  called. 

Note.  Has  the  Church   power   to  decree    the  dissolution  of  marriage     Could  the 
ratum  non  consummatum  for  a  general  cause  other  than  solemn  profes-  troduce  other 
sion  ?  Our  answer  is  that  the  Church  could  do  so,  provided  that  there  causes  ofdis- 
were  a  sufficient  reason  of  expediency  or  necessity.  The  power  of  the 
Pope,  such  as  we  have  described  it  above,and  as  it  appears  in  the  historical 
phases  of  its  exercise,  is  very  wide  with  regard  to  the  marriage  in  question. 
Such  marriage  is  subject  to  the  jurisdiction  of  the  Church,  and  is  accord- 
ingly capable  of  dispensation,  where  a  legitimate  reason  exists,  either  in 
particular  cases,  ox  by  a  general  law.  Therefore,  just  as  the  Church  has 
established  the  vow  as  a  legal  cause  of  dissolution,  so  also  could  it,  in  cer- 
tain circumstances,  introduce  other  general  causes  of  divorce,  as,  indeed 
Alexander  III  did  in  the  matter  of  affinity  supervening  after  marriage. 

Fourth  point.  The  dissolution  of  the  conjugal  bond  in 
the  casus  apostoli. 

Proposition.  In  virtue  of  the  Pauline  privilege,  marriage  validly 
contracted  between  unbaptized  persons  is  dissolved,  when  one  of  the 
partners,  after  having  received  baptism,  marries  again,  provided  that 
the  other,  having  been  duly  admonished,  withdraws,  i.  e.,  perseveres  in 
his  religion  and  refuses  to  cohabit  peacefully  with  the  converted  part- 
ner. 


I.  We  have  already  shown  above,  that  marriage  consummatum  ratum,  if  it 
is  not  to  be  put  in  the  same  rank  with  marriage  ratum  consummatum,  cannot, 
nevertheless,  be  called  simply  ratum  non  consummatum. 


3^4  THE   INDISSOLUBILITY   OF  MARRIAGE 

Explanation  and  proof. 

I.  Scriptural  foundation  of  the  privilege. 

491. 

The  Pauline      The  «  Casus  Apostoli  »  is  given  in  1<^  Cor.,  VII,  8-15,  more  especially  in 

^based^on^  verses  12-15.  The  passage  is  as  follows  :  c  8.  But  I  say  to  the  unmarried, 
/  Cor.  and  to  widows,  it  is  good  for  them  if  they  so  continue,  even  as  I.  9.  But 
if  they  do  not  contain  themselves,  let  them  marry  ;  for  it  is  better  to  marry 
than  to  be  burnt.  10.  But  to  them  that  are  married,  not  I,  but  the  Lord 
commandeth,  that  the  wife  depart  not  from  her  husband  ;  11.  and  if  she 
depart,  that  she  remain  unmarried,  or  be  reconciled  with  her  husband.  And 
let  not  the  husband  put  away  his  wife.  12.  For  the  rest  I  speak,  not  the 
Lord  (i) :  if  any  brother  have  a  wife  that  believeth  not,  and  she  consent  to 
dwell  with  him,  let  him  not  put  her  away.  13.  And  if  any  woman  have  a 
husband  that  believeth  not,  and  he  consent  to  dwell  with  her,  let  her  not 
put  away  her  husband.  14.  For  the  unbelieving  husband  is  sanctified  by  the 
believing  wife  ;  and  the  unbelieving  wife  is  sanctified  by  the  believing 
husband  ;  otherwise  your  children  should  be  unclean  ;  but  now  they  are 
holy.  15.  But  if  the  unbeliever  depart,  let  him  depart;  for  a  brother  or 
sister  is  not  under  servitude  in  such  cases ;  but  God  hath  called  us  in 
peace  ». 

The  essential  point  in  the  doctrine  of  St.  Paul  is  contained  in  verse  15  : 
€  If  the  unbeliever  depart,  let  him  depart  ■».  For,  these  words  show  that  the 
case  involves  the  dissolution  of  the  conjugal  bond,  under  certain  condi- 
tions, among  which  the  separation  effected  by  the  unbaptized  partner  holds 
the  principal  place. 

This  is  very  well  explained  by  Palmieri,  o.  c,  p.  217.  «  For  »,  he  says, 
«  the  sense  of  the  passage  is  this  :  if  the  unbaptized  party  effects  the 
separation  and  puts  away  the  baptized  partner,  or,  in  other  words,  as  it 
is  said  above  in  the  text,  if  the  infidel  party  does  not  consent  to  live  with 
the  baptized  one,  the  former  is  to  be  forsaken  and  allowed  to  depart.  The 


I.  According  to  certain  authors,  these  words  are  not  a  form  of  introduction, 
but  refer  to  what  goes  before,  and  are  the  counterpart  of  the  corresponding 
form  in  verse  10.  Instead  of  introducing  the  following  clause,  it  would  on  the 
contrary  be  the  conclusion  of  verses  8-11  and  the  sense  would  be  as  follows  : 
On  those  that  are  married  the  Lord  imposes  this  commandment,  and  not  I ; 
but  to  the  others,  i.  e.,  the  unmarried,  spoken  of  in  verses  8  and  9,  I  say,  and 
not  the  Lord.  This  interpretation  is  upheld,  among  others,  by  Palmieri,  o. 
c,  p.  216. 

Nevertheless,  the  majority  of  authorities  are  of  the  contrary  opinion,  and 
refer  the  form  to  the  following  verses.  In  their  opinion,  St.  Paul  here  address- 
es himself  to  heathen  husbands  and  wives,  in  opposition  to  Christian,  of  whom 
he  speaks  in  verses  10  and  n. 


THE  INDISSOLUBILITY   OF  MARRIAGE  325 

nature  of  this  abandonment  is  explained  in  the  reason  added  by  the 
Apostle,  viz.,  that  in  such  cases,  as  concerns  the  conjugal  bond,  a 
brother  or  sister  is  not  under  servitude,  namely,  to  the  unbaptized  party. 
Now  this  reason  shows  that  the  infidel  party  may  be  left  in  such  a  way 
that  the  conjtigal  bond  itself  is  also  broken ;  for  otherwise  the  baptized 
party  would  still  be  in  servitude  to  the  other.  The  convert  would  remain 
bound  by  the  marriage,  without  the  power  of  making  use  of  it,  owing  to 
the  malice  of  the  other.  Either  fireedom  from  slavery  merely  means  that 
the  deserted  party  is  not  bound  to  follow  and  seek  reconciliation  with 
one  who  goes  away  without  cause,  or  it  means  that  the  deserted  party  is 
freed  from  the  conjugal  bond.  But  the  former  alternative  is  equally  appli- 
cable to  all  kinds  of  unjustifiable  desertion,  whether  on  the  part  of  Chris- 
tian or  non-christian  parties,  and  in  such  a  case  there  is  no  obligation 
for  the  deserted  party  to  seek  reconciliation,  even  when  both  remain 
infidels  ;  but  the  Apostle  is  here  speaking  in  particular  of  desertion  on 
the  part  of  the  infidel,  and  of  a  prerogative  that  Christians  possess  ;  there- 
fore the  second  alternative  must  be  the  one  that  is  meant  (*)  ». 

This  quotation  shows  us  at  once  the  object  and  reason  of  the  inno- 
vation introduced  by  St.  Paul.  This  was  the  advantage  of  the  faith. 
It  was  necessary  to  make  things  favourable  for  conversion  to  the 
faith  ;  but  married  infidels  would  be  deterred  therefrom  if  they  knew 
that  they  were  bound  after  baptism  to  observe  continence,  in  case  they 
were  not  able  to  live  peaceably  with  an  unconverted  husband  or 
wife. 

Some  authors  maintain  that  the  dispensation,  of  which  we  have 
just  been  speaking,  is  of  divine  law,  promulgated  by  St.  Paul  ; 
while  others  prefer  to  speak  of  it  as  of  apostolic  right,  introduced  by 
the  Apostle  of  the  Gentiles,  in  virtue  of  special  authority,  and  after- 
wards extended  to  the  whole  world  with  the  consent  of  St.  Peter. 
The  introductory  clause,  «  I  speak,  not  the  Lord  »,  as  referring  to 
what    follows,    certainly    seems  to  favour  the  latter    opinion  ;   more- 


i.CF.Wernz,  o.c,  IV,  no  702,  note  61.  Cf.also  Fahrner,  o.c,  p. 146-169  and  271- 
390,  who  there  gives  at  length  the  successive  interpretations  that  have  been  put 
on  the  text  of  St.  Paul,  together  with  the  historic  phases  of  the  doctrine  of 
dissolubility  in  the  Casus  ApostoH.L,et  us  note  on  this  subject  the  singular  opinion 
formerly  put  forth  by  certain  theologians  :  according  to  them  the  conjugal  bond 
was  dissolved  by  the  very  fact  of  the  separation  effected  by  the  infidel  party, 
and  they  held  that,  if  this  party  subsequently  became  converted,  the  same  bond 
in  some  way  resumed  its  force  «  quasi  jure  postliminii  »,  as  they  said,  so  that  the 
former  marriage  ought  to  be  re-established,  inasmuch  as  the  former  marriage 
was  now  in  favour  of  the  faith  (ex  consequentia  prioris  matrimonii  in  favorem 
fidei)  p.  i68. 


326 


THE  INDISSOLUBILITY  OF  MARRIAGE 


49t, 

It  affects 
marriage 
contracted 


between  un- 
baptized 
persons. 


validly ; 


over,  we  shall  show  below,  n^  196,  and  as  we  have  already  seen  in 
n°  188,  that  the  Sovereign  Pontiff  has  power  to  dissolve  marriage 
legitimum  consummatum,  even  when  the  conditions  required  by  St.  Paul 
are  wanting  :  if,  therefore,  the  Church  has,  of  itself,  more  than  sufficient 
power,  there  is  no  apparent  reason  for  the  intervention  of  divine 
authority  in  the  case  of  the  Apostle  (*).  Nevertheless,  the  former  opinion 
has  the  support  of  the  Instruction  of  the  C.  S.  O.,  11  July  1866,  ad  8'", 
where  the  privilege  is  called  divine,  granted  for  the  advantage  of  the 
faith  €  by  Our  Lord,  and  promulgated  by  the  Apostle,  St.  Paul  »  (*) 

II.  Object  of  the  privilege. 

A.  The  Casus  Apostoli  affects  only  marriage  legitimum,  that  is  to 
say,  marriage  validly  contracted  between  unbaptized  persons,  whether 
consummated  or  not.  Consequently  : 

1.  It  cannot  be  applied  to  a  marriage  contracted  between  a 
baptized  and  an  unbaptized  person  under  a  dispensation  from  the 
impediment  of  <iw/)antos  cm/^ms.  Once  such  a  marriage  has  been 
consummated,  it  cannot  be  dissolved,  and  only  separation  is  pos- 
sible ('),  according  to  the  rules  given  above.  The  Casus  Apostoli 
in  no  way  affects  marriage  contracted  between  two  baptized  per- 
sons, one  of  whom,  through  hatred  of  the  Christian  religion,  has 
embraced  paganism  (*). 

2.  We  must  also  exclude  marriage  contracted  between  unbap- 
tized persons,  but  invalidly,  as  is  often  the  case. 

To  judge  of  the  validity  or  invalidity  of  such  marriages,  we 
must  first  of  all  see  if  the  usual  ceremonies  have  been  observed, 
according  to  the  customs  of  each  country  (*)  ;  and  we  must  then 


I.  Cf.  Schweix.  Kirchenzeitung, igii,  p.  36 ;  Vermeersch,  De  Casu  Apostoli  no  3. 
a.  Collectanea,  n°  1353,  cf.  nos  1354  and  1333.   Cf.  Wernz,  o.  c,  IV,  n°  702, 
note  60. 

3.  Decree  of  the  C.  S.  O.,  15  Aug.  1759,  in  the  Collectan.,  n«>  1312. 

4.  This  has  been  repeatedly  declared  by  the  Holy  See,  as  may  be  seen  from 
the  decrees  given  in  the  Collectan.,  n°  1280  ss.  Innocent  III,  cap.  7,  X,  IV, 
19,  pointed  it  out  quite  clearly,  and  laid  stress  on  the  difference  between  the 
two  cases,  adding,  however,  that  one  of  his  predecessors  had  decided  otherwise. 
And,  in  fact,  there  exists  a  decision  in  the  contrary  sense  emanating  from 
Celestine  III,  and  given  in  Friedberg,  Corpus  Juris  Canonici,  cap.  i,  X,  III, 
33,  according  to  cap.  3,  Comp.  II,  III,  30.  Cf.FAHRNER,  o.  c,  p.  161  s.,  and  below, 
no  200. 

5.  Thus  the  C.  S.  O.,  in  its  decree  of  7  Aug.  1898,  declares  that  we  must  con- 
sider as  valid  marriages  celebrated  «  with  the  usual  ceremonies  of  the  country, 


THE  INDISSOLUBILITY  OF  MARRIAGE  327 

find  out  if  there  were  any  diriment  impediments  of  the  natural, 
divine,  or  civil  law  ('). 

If  the  validity  remains  doubtful,  the  doubt  must  be  solved  in 
favour  of  th".  faith,  i.  e.,  so  as  to  leave  the  converted  partner 
at  liberty  (*)  ;    but   it   must    not  be    assumed    that  there    is    a 


sufl&ciently  expressing  the  mutual  and  present  consent  of  the  parties,  according 
to  Ihe  common  estimation  of  the  locality  ».  Cf.  Collat.  Brug.,  t.  IV,  p.  542  ss., 
and  SiCA,  o.  c,  p,  p.  337  ss. 

1.  Special  attention  ought  to  be  given  to  the  question,  whether  the  consent 
was  given  under  a  suspensive  condition,  incompatible  with  the  substance  of 
marriage,  keeping  in  view  the  various  decrees  of  the  Holy  See  on  this  matter, 
among  others  the  Instr.  of  the  C.  S.  O.,  of  9  Dec.  1874,  nos  8-10,  and  of  34 
Jan.  1877,  in  the  Collectan.  n°^  1301  and  1302,  compared  with  the  decree  of  the 
same  Congr,  dated  18  May  1898,  in  the  .V.  R.  Th.,  t.  XXX,  p.  27.  Consult  also 
the  article  by  Planchard,  in  the  R.  Th.  Fr.,  1899,  p.  93-99,  and  P.  Michbl,  o. 
c,  p.  II  ss.,  compared  with  the  solution  given  by  the  C.  S.  O.,  on  30  Apr.  1908, 
to  the  first  case.  (See  the  Coll.  Brug.,  t.  XIV,  p.  341  ss.). 

It  also  happens  that  infidels  <  occasionally  marry  without  the  customary  local 
ceremonies,  so  that  in  the  beginning  these  unions  must  be  regarded  as  concu- 
binal.  But  things  turn  out  well  and  they  live  together  faithfully...  leading  a 
conjugal  life  which  they  will  not  give  up,  because  they  love  one  another,  have 
children,  and  separation  would  cause  them  both  serious  injure  ».  (Collectan., 
no  1356,  towards  the  end,  and  no  1301,  17).  Marriages  of  this  kind  become  legiti- 
mate in  the  course  of  their  existence,  and  this  is  why  the  Cardinals  declare 
«  that  it  is  necessary  to  examine  not  only  the  initial  circumstances,  and  the  way 
in  which  the  marriage  was  first  contracted,  but  also  its  duration  and  the  other 
circumstances  that  may  have  subsequently  intervened,  such  as  the  birth  of 
children,  mutual  love,  its  continuance  and  growth,  and  so  forth.  If  such  indica- 
tions either  singly,  or  by  their  collective  weight,  show  certainly  or  almost  cer- 
tainly that  the  parties  in  question  will  remain  united  until  death,  though  it  may 
be  evident  that  in  the  beginning  there  was  only  an  irregular  union,  it  must,  never- 
theless, be  held  as  certain,  or  at  least  as  probable,  that  such  illicit  union  has, 
in  the  course  of  time,  passed  into  a  legitimate  marriage  ».  Collectan.,  n°  1301  ad 
17,  and  compare  with  the  decree  of  the  C.  S.  O.  1892  [ibid.,  n°  2184);  cf.  also 
Vermeersch,  De  Casu  Apostoli,  ch.  II,  art.  i,  par.  i,  especially  nos  13  and  fol- 
lowing ;  La  Revue  Covgolaise,  II,  p.  170  ss. 

2.  See  the  decrees  of  the  C.  S.  O.,  of  8  June  1836  [Colhctanea,  no  1333),  and  the 
decrees  of  the  C.  S.  O.  of  18  May  1893,  in  the  Collectanea,  n°^  2184  and  3i85,ad  i^ 
and  2'"  respectively,  and  compare  with  the  decree  of  the  C.  S.  O.  of  7  July  1880, 
given  by  Wernz,  o.  c,  IV,  no  703,  note  66.  Cf.  also  Coll.  Brug.,  t.  IV.  p.  550  s. 
and  the  documents  quoted  there,  as  well  as  the  decree  of  the  C.  S.  O.,  of  19 
Apr.  1899,  in  the  Anal,  eccl.,  1899,  p.  336  and  383. 

An  example  may  be  found  in  the  case  of  a  marriage    contracted  within  the 


328  THE  INDISSOLUBILITY   OF  MARRIAGE 

y„^         doubt    without  previous  examination   and    careful    inquiry  (*). 

it  implies  the       B.  The  PauHne  privilege  implies  the  dissolution  of  the  conjugal 

tJie  conjugal  bond.  Nevertheless,  it  is  to  be  observed  that  marriage  legitinium  is 

bond        not  dissolved^  the  fact  of  the  baptism  of  the  converted  partner  (*), 

even  if  the  other  withdraws  ;  it  becomes  dissoluble  only  at  the 

will  of  the  former.  It  is  not  really  dissolved  until  the  convert, 

making  use  of  his  right,  actually  marries  again  ('). 


degrees  of  consanguinity  within  which  marriage  is  probably  invalid  by  the  law  of 
nature  itself,  as  for  instance,  between  brother  and  sister  (cf.  infra,  no  300).  On 
the  conversion  of  one  of  the  parties,  the  marriage  might  be  declared  null,  with 
liberty  for  the  baptized  party  to  marry  again,  quite  apart  from  any  application 
of  the  Pauline  privilege.  We  say  «  might  be  »,  because  it  cannot  be  said  that 
nullity  must  be  declared,  and  it  would  even  be  lawful  to  continue  cohabitation, 
apart  from  scandal  (as  in  the  case  mentioned),  or  danger  to  the  faith  of  the 
baptized  party. 

I.  The  preliminary  inquiry  must  not  be  omitted  even  in  the  case  of  savage 
tribes,  that  have  apparently  lost  all  idea  of  true  marriage,  like  the  tribes  spoken 
of  by  the  Bishop  of  St.  Albert,  in  the  doubt  proposed  by  him  to  the  C.  S.  O. 
The  S.  Congr.,  on  the  9  Dec.  1874,  made  the  following  observation :  «  it  is 
neither  certain  nor  proved  that  among  such  tribes  there  is  no  marriage  valid 
in  the  natural  law,  that  all  their  unions  are  indiscriminately  concubinal,  and 
that  every  idea,  however  indistinct,  of  the  difference  between  marriage  and 
concubinage  has  been  lost  to  them.  It  is  not  right  to  pass  a  judgment  like  that 
on  an  entire  foreign  race,  without  having  first  made  a  careful  examination  of 
their  manners  and  customs,  and  basing  such  a  conclusion  on  weighty  arguments 
drawn  from  ascertained  facts :  without  that,  we  must  keep  to  the  presumptio 
juris.  For,  in  the  absence  of  certain  proof,  nature  which,  as  the  Apostle  says, 
Rom.  II,  14,  has  implanted  the  first  conception  of  marriage  in  the  hearts  of  all, 
cries  onton  behalf  of  these  tribes,  however  abandoned  they  may  be  ».  (Collec- 
tanea, n°  1301,  ad  a""). 

«  All  things  considered,  it  is,  therefore,  impossible  to  establish  a  general  rule 
permitting  the  omission  of  particular  inquiry,  and  to  decree  that  the  marriages 
of  infidels  in  this  (barbarous)  country,  and  of  such  Catholics  as  happen  to  be  in 
like  ignorance,  are  to  be  considered  as  mere  concubinage  ;  on  the  contrary,  a 
special  inquiry  must  be  made  into  each  particular  case  ». /6«i.,  n.  il.  Cf.  also 
the  decree  of  the  C.  S.  O.  of  18  May  1893,  in  the  Collectanea,  n°  3184. 

3.  «  Cum  per  sacramentum  Baptismi  non  solvantur  conjugia,  sed  crimina 
dimittantur  ».  C.  8,  X,  IV,  19. 

3.  «  Hoc  privilegium  divinum  in  eo  consistere,  quod  stante  matrimonio 
legitime  in  infidelitate  contracto  et  consummate,  si  conjugum  alter  christianam 
fidem  amplectitur,  renuente  altero  in  sua  infidelitate  obdurato  cohabitare  cum 
converso,  aut  cohabitare  quidem  volente  sed  non  sine  contumelia  Creatoris... 
tunc  integrum  fit  conjugi  converso  transire  ad  alia  vota,  postquam  infidelis 


THE  INDISSOLUBILITY   OF  MARRIAGE  329 

It  is,  therefore,  the  new  marriage  of  the  baptized  partner  that 
dissolves  the  bond  of  the  previous  marriage,  and  this  dissolution  at 
the  same  time  entails  the  validity  of  the  second  alliance,  just  as 
in  the  transformations  of  nature  the  corruption  of  one  substance 
gives  birth  to  another.  The  former  union  being  thus  dissolved, 
the  party  remaining  unbaptized,  is  also  at  liberty  to  marry 
again  ('). 

III.  Conditions. 

The  first  condition  is  that  one  of  the  parties  be  converted,  and  Conditions  : 
receive  baptism.  The  necessity  of  this  condition  follows  from  the  kuytfesmnst 

words  of  St.  Paul,  and  from  the  end  for  which  the  privilege  was      receive 

...       baptism ; 
introduced.  It  does  not  matter  if  baptism  be  received  m  a  hereti- 
cal sect  (^),  but  the  fact  that  the  one  party  has  become  a  cate- 
chumen does  not  suffice  ('). 

The  second  condition  is  that  the  other  party  effect  the  se-  2°  and  tlie 
paration.  This  condition  is  considered  to  have  been  fulfilled  °  Jpayation 
when  the  two  following    points  have  been  verified  : 

A.  Perseverance  in  infidelity.  For,  if  before  the  converted  party    i.  e.,  that, 
marries  again,  the  other  also  is  converted  and  receives  baptism,  ^^^^ddUy'* 
the   Pauline  privilege    does  not   apply,  and  the  original  marri- 


interpellatus,  aut  absolute  recusaverit  cum  eo  habitare,  aut  animum  sibi  esse 
ostenderit  cum  illo  quidem  cohabitandi,  sed  non  sine  Creatoris  contumelia. 
Juxta  idem  divinum  privilegium,  conjugem  conversum  ad  fidem,  in  ipso  conver- 
sionis  puncto  non  intelligi  solutum  a  vinculo  matrimonii  cum  infideli  adhuc 
superstite  contract!,  sed  tunc,  si  conjux  infidelis  renuat,  acquirere  jus  transeundi 
ad  alias  nuptias  cum  tamcn  conjuge  fideli.  Caeterum  tunc  solum  conjugii 
vinculum  dissolvi  quando  conjux  conversus  transit  cun  effectu  ad  alias  nuptias  ». 
Instr.  C.  S.  0. 11  Jul.  1866,  in  Collectan.  n°  1353. 

I.  «  Principium  autem  juris  communis  est :  soluta  a  vinculo  conjugali  muliere, 
solutum  remanerc  et  virum  ;  quippe  vinculum  est  inter  duo,seu  duorum  in  unum, 
idcirco  libertas  unius  libertatem  infert  alterius  >.  Instr.  C.  S.  O.,  16  Sept.  1834, 
in  Collectan.,  no  1338,  ad  IJ". 

3.  Cf.  Palmieri,  o.  c,  p.  334  s. ;  Wernz,  o,  c,  IV,  no  702,  note  59. 

3.  Decree  of  the  S.  C.  de  P.  F.,  16  Jan.  1803,  Collectan.,  no  1379.  As  regards 
a  married  catechumen  who  desires  to  take  advantage  of  the  Pauline  privilege, 
observe  that  such  cannot  be  admitted  to  baptism,  unless  disposed  to  keep  or  take 
back  his  legitimate  partner,  where  the  latter  consents  to  peaceable  cohabitation. 
Decision  of  the  C.  S.  O.,  of  13  Apr.  1908,  in  the  Coll.  Brug.,  t.  XIV,  p.  341  ss.  See 
also  Vermeersch,  o.  c,  n"  37  ss.;  the  Author  observes  that  one  may  sometimes 
respect  the  good  faith  of  the  aspirant  to  baptism. 


33°  THE  INDISSOLUBILITY  OF   MARRIAGE 

age,  now  become  ratum  by  the  baptism  of  both  parties,  is 
henceforth  subject  to  the  laws  of  Christian  marriage.  The 
words  of  St.  Paul,  and  the  decrees  of  the  Holy  See  leave 
no  doubt  on  this  point  (*).  On  the  other  hand,  however,  it 
suffices  for  the  converted  partner,  if,  at  the  moment  of  using  the 
privilege,  the  other  is  still  in  fact  an  infidel,  even  though  the 
latter  has  shown  a  disposition  to  embrace  the  faith,  or  has  alrea- 
dy become  a  catechumen  (')  ;  but  the  fulfilment  of  the  second 
condition,  of  which  we  shall  speak  immediately,  is  supposed  ('). 
he  refuses  B.  Refusal  of  peaceable  cohabitation  on  the  part  of  the  unconvert- 
cohabitation ;  ^^  P^-^ty.  This  case  occurs  in  three  hypotheses  : 

1.  If  he  is  unwilling  to  continue  cohabitation,'!,  e.,  community  of  bed 
and  board,  though,  perhaps,  himself  inclined  to  Christianity  (*). 
It  does   not    matter   what   the   reason  of  his   refusal  may  be, 


1.  See  inter  alia  the  decrees  of  the  C.  S.  O.,  of  ii  June  1866,  ad  8™,  of  20 
June  1866  and  18  May  1893,  ad  a^^  in  the  Collectan.,  nos  1353,  1354  and  2185  ; 
likewise  cap.  8,  X,  IV,  19,  where  Innocent  III  declares  :  c  If  the  husband  is 
converted,  and  his  wife,  acting  in  like  manner,  follows  him  before  he  has  law- 
fully married  again...,  he  will  be  under  the  obligation  of  taking  her  back  ». 
See  also  Vermeersch,  o.  c,  n^  37  ss.,  where  he  observes  that  there  is 
sometimes  occasion  to  take  into  account  the  good  faith  of  the  unbaptized. 

2.  Decree  of  the  C.  S.  O.,  of  8  July  1891,  Collectan.,  n"  1362,  and  of  28  Apr. 
1899;  Atwl.  eccles.,  1899,  p.  283,  compared  with  P.  Michel,  o.  c,  p.  35  ; 
see  also  the  a^d  and  y^  cases  solved  by  the  C.  S.  O.  on  30  Apr.  1908,  1.  c. 

3.  Certainly,  if  on  other  grounds  there  is  no  reason  to  fear  for  peaceable 
cohabitation,  it  is  not  lawful  to  marry  again  when  the  requisite  departure  is 
wanting  ;  and  if  the  unbaptized  party,  being  willing  to  cohabit  peaceably,  puts  off 
the  conversion  to  which  he  shows  himself  inclined,  the  execution  of  his  good 
intention  must  be  awaited  with  patience.  On  the  other  hand,  however,  an  exces- 
sive delay  in  receiving  Baptism  may  well  give  rise  to  doubts  of  his  sincerity,  and 
even  cause  suspicion  that  the  faith  of  the  convert  is  in  danger.  On  this  account 
the  Holy  See  requires  that  the  Bishop  should  be  consulted,  and  he,  after  consi- 
dering all  the  circumstances,  will  decide  if  it  is  a  case  for  the  Pauline  privilege. 
Cf.  decreta  C.  S.  O.,  4  July  1855  and  39  Nov.  1882,  in  the  Collectan  »,  n.  1113  and 
1581  (ad  3«») ;  cf.  also  VAmi  du  Clerge,  1912,  p.  238  s. 

4.  To  the  question  :  «  If  a  convert  was  married,  before  his  conversion,  to  an 
infidel  wife,  who  also  wishes  to  embrace  the  faith,  but  absolutely  refuses  to  live 
with  him...  can  he  make  use  of  the  Pauline  privilege,  and  marry  again,  after 
having  ascertained  the  intentions  of  his  wife  as  to  cohabitation  ?»,  the  C.  S.  O., 
8  July  1891,  replied  «  in  the  affirmative... provided  the  wife  is  still  in  infidelity  ». 
Collectanea,  no  1362,  and  compare  with  the  decree  of  36  Apr.  1899,  in  the  Anal, 
eccl.,  1899,  p.  383. 


THE  INDISSOLUBILITY  OF  MARRIAGE  33I 

whether  hatred  of  religion,  or  any  other  motive  whatever, 
provided  it  is  not  the  baptized  partner  who  has  given  him  a  just 
and  reasonable  cause  for  separating  from  her  (') ;  a  motive  based  on 
something  that  occurred  before  baptism  is  not  considered  a  legiti- 
mate reason  (*). 

2.  Or,  again,  if  he  consents  to  cohabitation,  but  will  not  live 
with  her  peaceably  and  without  blaspheming  the  Creator ;  e.  g.,  if  he 
endeavours  to  lead  the  baptized  party  away  from  the  faith  ('), 
or  to  draw  her  into  mortal  sin,  especially  against  conjugal 
chastity  (*),  or  if  he   refuses  to  give  up  the  practice  of  concubi- 


1.  To  the  question :  «  An  (privilegium  fidei)  solum  locum  habeat  quando 
infidelis  discedit  odio  fidei,  an  etiam  quando  discedit  propter  discordias  vel 
aliam  causam  a  fide  diversam  ?»,  the  C.  S.  O.,  5  Aug.  1759,  replied  :  c  Cum 
militet  ex  parte  conjugis  conversi  favor  fidei,  eo  potest  uti  quacunque  ex  causa, 
dummodo  justa  sit,  nimirum  si  non  dcdcrit  justum  ac  rationabilc  motivutn 
alteri  conjugi  discedendi*.  Collectan.,  n°  13 12,  ad  a"! ;  and  cf.  deer.  C.  S.  O., 
26  Apr.  1899,  in  the  Anal.  EccL,  1899,  p.  283. 

2.  Thus  a  fault,  e.  g.,  adultery,  committed  by  the  convert  before  conveniony 
is  not  considered  just  and  reasonable  ground  for  separation,  «  because  the  stain 
of  adultery  committed  before  baptism  is  looked  upon  as  washed  away  by 
baptism  ».  Consequently,  when  it  is  a  question  «  of  an  infidel  invited  to  resume 
conjugal  relations  with  his  converted  spouse,  and  he  refuses  to  do  so  solely  on 
the  ground  that  he  had  already  repudiated  her  on  account  of  adultery 
committed  before  conversion,  the  refusal  of  the  infidel  party  renders  the  other 
free  to  contract  a  fresh  marriage  ».  Such  is  the  decision  of  the  S.  C.  de  P.  F. 
30  Jan,  1807  (Collectan.,  no  1332). 

On  the  other  hand,  adultery  subsequent  to  conversion  furnishes  the  infidel 
party  with  a  legitimate  motive  for  separation,  and  «  in  that  case  such  sepa- 
ration does  not  in  any  way  render  the  convert  capable  of  marrying  again  ». 
Ibid.,  and  cf,  the  decree  of  the  S,  C.  de  P.  F.,  16  Jan.  1797,  Collectan.,  no  1318. 
Finally,  to  the  question  :  «  are  faults  committed  after  baptism,  but  of  no  conse- 
quence in  the  eyes  of  the  infidel  party,  or  entirely  unknown  by  him,  an 
obstacle  to  the  use  of  the  Pauline  privilege  by  the  baptized  party  ?  »,  the  C.  S, 
O  ,  on  19  Apr.  1899,  replied  by  referring  to  its  decrees  of  6.  Aug  1759  and  ot 
16  Jan.  1797,  mentioned  above  in  this  and  the  preceding  note,  and  by  calling 
to  mind  the  principle  which  we  shall  meet  with  later,  viz.,  that  in  doubt  the 
decision  must  always  be  to  the  advantage  of  the  faith.  Anal,  eccl.,  1899,  p.  236, 
Cf.  VicTORius  AB  Appeltern,  o.  c,  p.  207  s.,  and  Sica,  p.  401  ss.,  and  456  s. 

3.  Deer,  of  the  C.  S.  O,,  29  Nov.  1882,  Collectan.,  no  1358,  ad  31". 

4.  Deer,  of  the  S.  C,  de  P.  F.,  5  March  1816,  ad  6"",  where  we  read  :  «  If  the 
solicitation  to  sin  is  not  on  the  part  of  the  husband  towards  his  wife  (and 
vice  versa),  but  comes  from  others  who  live  with  him,  e.  g.,  from  the  father-in 
-law  or  the  mother-in-law,  the  converted  wife   may,  if  she  has  no  other  means 


332  THE  INDISSOLUBILITY   OF  MARRIAGE 

nage  (*),  or  to  have  the  children  brought  up  as  Christians  (*). 
3.  Or,  finally,  if  the  infidel  party  is  ready  to  consent  to 
everything,  but  finds  impossible  to  establish  the  conjugal  life  ;  pro- 
vided that  the  converted  party  has  not,  since  baptism,  done 
anything  to  cause  such    impossibility  (^). 

Note.  1.  The  Pauline  privilege  is  applicable  even  where  the  infidel 
party  has  not  separated  from  the  other  (in  the  sense  stated)  until  after 
having  lived  in  peace  with  the  convert  for  several  years  after  the  baptism 
of  the  latter  (*). 

2.  When  the  infidel  party  consents  to  cohabit  with  the  convert  peace- 
ably and  without  blaspheming  God,  and  is  not,  therefore,  considered  to 
separate,  St.  Paul  teaches  that  the  baptized  party  cannot  put  the  other 
away  in  order  to  contract  afresh  marriage.  Innocent  III,  c.  8,  X,  IX, 
19  ("),  in  his  interpretation  of  the  teaching  of  the  Apostle,  comes  to  this 
conclusion,  and  the  same  has  received  the  more  recent  confirmation  of 
the  Holy  See  (s). 

We  say    :  in  order  to   contract  a  fresh  marriage.  For,  leaving  this 


of  escaping  it,  leave  that  house  of  perdition  ;  but  she  cannot  break  the  marriage 
bond  and  marry  again  >.  Collectanea,  n°  1323. 

1.  C.  S.  O.  II  July  1886  ad  a""  and  s""  Collectan.,  no  1353. 

2.  Ibid.,  ad  4">.  Cf.  Vermeersch,  o.  c,  n°^  45  and  48. 

3.  When  the  wife,  on  being  asked  if  she  is  willing  to  be  converted  or 
to  live  peaceably  with  her  converted  husband,  replies  €  that  she  is  quite 
willing  to  do  so,  but  is  prevented  by  a  second  husband,  or  by  a  creditor 
who  will  not  let  her  go  »,  the  C.  S.  O.,  13  June  1850,  decided  that  the 
convert  could  «  lawfully  and  validly  contract  a  fresh  marriage  with  a 
Christian  woman,  provided  that  he  was  not  the  cause  of  the  obstacle  that 
prevented  his  wife  from  living  with  him  ».  Collectanea,  no  1339.  More- 
over, the  decree  already  quoted  of  the  C.  S.  O.,  of  8  July  1891,  decides  that 
the  man  can  make  use  of  the  privilege  when  his  wife  has  been  taken 
away  from  him  beyond  all  hope  of  recovery,  even  though  she  should  wish 
to  be  converted  and  live  with  him  ;  and  even  when  the  husband  has  sold 
his  wife,  «  provided  that  he  did  so  before  baptism  ».  Collectan.,  no  1362. 
Cf.  Michel,  o.  c,  p.  56  s. 

4.  C.  S.  O.   II  July  1866,  in  the  Collectan.,  no  1353,  ad  im,  and  cf.  no  1337. 

5.  «  Qui  autem  secundum  ritum  suum  legitimam  repudiavit  uxorem,... 
nunquam,  ea  vivente,  licite  poterit  aliam,  etiam  ad  fidem  Christi  conver- 
sus,  habere,  nisi  post  conversionem  ipsius  ilia  renuat  cohabitare  cum  ipso, 
aut  etiamsi  consentiat,  non   tamen  absque  contumelia  Creatoris  >. 

6.  «  When  the  unbaptized  party  consents  to  live  with  the  baptized  without 
blaspheming  the  Creator,  the  marriage  holds  good  according  to  St.  Paul. 
Decree  of  the  C.  S.  O.,  14  Dec.  1848,   Collectan.,  no  1338. 


THB  INDISSOLUBILITY   OF   MARRIAGE  333 

out  of  the  question,  the  baptized  partner  is  not  bound  to  continue 
cohabitation  with  the  unbaptized  :  he  has  a  right  to  a  separation  a  mensa 
et  toro ;  and  such  separation  is  not  less  legitimate  than  that  between  a 
husband  and  wife  who  are  both  baptized,  when  one  or  the  other  of  them 
has  fallen  into  heresy  or  infidelity.  Moreover,  if,  in  a  particular  case,  con- 
sidering the  special  circumstances  of  place  and  persons,  the  conjugal  life 
brmgs  with  it  the  danger  of  perversion  for  the  baptized  partner,  notwith- 
standing the  good  dispositions  of  the  unbaptized  and  the  promise  of  peace- 
able cohabitation,  the  former  may  be  under  the  obligation  of  abandoning 

their  common  abode  ('). 

195. 
The  third  condition  requires  that  by  means  of  an  interpellation  .9<>  The  sepa- 

formally  made  to  the  infidel  party,  it  shall  be  established  that  he  b7est!i"lTsh!d 
separates.  by  interpdla- 

A.  The  object  of  this  interpellation  is  twofold  :  to  ascertain  a/  «  if  Object,  time 
the  infidel  is  willing  to  be  converted  ;  b/  or  if  he  is  at  least  willing  '^^J*^l%  "■^ 
to  cohabit  v^^ith  the  other  without  blaspheming  the  Creator  >  (*).        tion; 

B.  The  time  fixed  for  making  this  inquiry  is  that  which  follows 
the  baptism  of  the  convert  (^)  ;  but  the  Holy  See  permits,  in  par- 
ticular circumstances  and  as  a  dispensation,  the  making  of  the 
interpellation  before  baptism  (*).  When  once  this  interpellation 
has  been  duly  made,  there  is  no  need  to  repeat  it,  even  if  the 
convert  should  not  marry  again  for  a  considerable  time  (*). 

C.  The  form  of  this  interpellation  is  either  legale  in  accordance 


1.  Some  authors  (see  Vermeersch,  o.  c,  n°^  45  and  48)  hold  that  the  pri- 
vilege is  also  applicable  in  this  case  ;  and  there  are  some  who  go  so  far  as  to 
consider  cohabitation  with  an  infidel  partner  at  all  times  unlawful ;  whence 
they  infer  that  the  case  of  the  Apostle  is  verified  as  often  as  the  said  infidel 
refuses  to  be  converted  ;  at  the  very  least,  it  would  not  be  permissible  to  follow 
this  opinion  in  practice  without  having  recourse  to  the  Holy  See,  so  that  it 
might  declare  the  dissolubility  ot  the  marriage,  or  even,  as  we  shall  point  out 
below,  dissolve  the  marriage  bond.  Cf.  Collectanea,  no  2183,  and  compare  with 
Michel,  o.  c,  p.  55,  and  De  Becker,  De  Matr.,  n°  447. 

2.  Deer,  of  the  S.  C,  de  P.  F.,  16  Jan.  1797,  Collectan.,  no  1318  ;  see  also  nos 
1323  ad  v^,  and  1361. 

3.  Deer,  of  the  C.  S.  O.,  13  Apr.  1S59,  Collectan.,  no  1350,  and  compare  with 
nos  1357  and  1358.  Cf.  also  the  decree  of  the  C.  S.  O.,  3  Apr.  1908,  quoted  by 
us  in  note  to  no  194. 

4.  Nevertheless,  as  a  catechumen  is  incapable  of  receiving  a  dispensation, 
«  we  must  here  understand  that  the  Church  ratifies  after  baptism  the  inter- 
pellation that  it  permitted  to  be  made  before  ».  Vermeersch,  o.  c,  no  55. 

5.  S.  C.  de  P.  F.,  36  June  i8iO,  Collectan.,  no  1336. 


334  THE   INDISSOLUBILITY   OF  MARRIAGE 

with  the  formalities  prescribed  by  the  Church  and  this  form  must, 
as  a  rule,  be  employed  ;  or  private,  and  this  suffices  in  case  ot 
necessity,  provided  that  full  proof  of  the   same    may  be  given 
in  the  external  forum  (*).  It  is  better  that  the    interpellation 
should  be  made  through  the  agency  of  some  trustworthy  person, 
rather  than  by  the  interested  party.  Cf.  Monita,  p.  521. 
D.  As  regards  the  necessity  of  the   interpellation  : 
its  necessity  is      1.  All  authorities  are  agreed  that  the  licit  use  of  the  Pauhne 
^mav  affect    Privilege  absolutely  requires  the    preliminary  interpellation,    at 
validity;     least  in  the  private  form.  Moreover, the  Holy  See  is  very  strict  on 
this  point,  even  in  cases  where  the  aforesaid  formality  appears  to 
be  useless  or  impossible  (*),  and  even  when  it  is  already   cer- 
tain that  the  answer  will  be  in   the  negative  ('). 

Moreover,  many  Roman  documents  openly  base  the  neces- 
sity of  this  interpellation  on  the  divine  law  (*).  According  to 
them,  then,  the  divine  law  (inasmuch  as  the  Pauline  privilege  is 
based  on  the  authority  of  divine  law,about  which  see  above  n°  191) 
in  general  requires  it,  because  it  demands,  as  a  condition,  sepa- 
ration originating  with  the  unbaptized  party,  and  interpellation 
is  the  ordinary  means  of  establishing  the  fact.  But  this  divine 
law  does  not  enforce  its  requirements  in  all  cases  without  excep- 
tion, e.  g.,  where  it  is  already  well  known  from  other  sources 

I.  Cf.  De  Bbcker,  De  Matt.,  p.  448  s.  ;  Michel,  o.  c,  p.  48  s.  ;  Putzbr,  o.  c, 
nos  i2g  and  132 ;  this  last  author  gives  the  form  of  interpellation. 

a.  «  The  missionaries  ought  to  know  that  Benedict  XIV...  declares  un- 
safe in  practice  the  opinion  that  the  legal  interpellation  may  be  licitly  omitted 
as  often  as  it  is  in  fact  impossible,  or  foreseen  to  be  useless,  if  made.  He  is  of 
opinion...  that  even  in  the  case  in  which  the  infidel  party  has  gone  away 
to  a  distant  country,  or  to  an  unknown  place,  so  that  the  interpellation  cannot 
be  made,  there  is  still  need  of  a  dispensation  from  the  Sovereign  Pontiff, 
to  whom  it  belongs  to  declare  under  what  circumstances  the  divine  precept, 
by  which  the  said  interpellation  seems  to  be  enjoined,  ceases  to  bind  ». 
Instr.  C.  S.  O.  16  Sept.  1824,  in  the  Collectan.,  n°  1328.  The  decrees  of  13 
March   1901,  given  in  the  Anal.  eccL,  1901,  p.  154,  refer  to  the  same  matter. 

3.  See  the  decree  of  the  S.  C.  de  P.  F.,  5  March  i8io,  ad  3.  It  is  there 
decided  that  «  the  interpellation  must  be  made  in  the  casein  question  »,  i. 
e.,  when  the  converted  partner  has  been  publicly  repudiated.  Collectan.  no  1323. 
See  on  the  other  side  Vermeersch,  o.  c,  no  53. 

4.  Cf.  the  decree  of  the  C.  S.  0.,  16  Sept.  1824,  just  quoted  ;  the  decree  of  the 
C.  S.  O.,  la  June  1850,  Collectan.,  no  1339,  as  well  as  the  decree  of  the  S.  C.  de 
P.  F.,  3  March  1816,  ad  i«n,  Collectan,,  no  1323. 


THB  INDISSOLUBILITY   OF  MARRIAGE  335 

what  to  expect  in  the  matter  of  separation.  In  that  case  it  is 
only  a  question  of  the  ecclesiastical  precept,  which  enjoins  the 
interpellation  in  all  cases  without  distinction. 

2.  The  Holy  See  seems  to  suggest  that  even  the  validity 
of  the  Pauline  privilege  is  subject  to  the  preliminary  inter- 
pellation (').  Whence  it  follows  that  where  this  formality  has 
been  omitted  (without  dispensation),  the  new  marriage  cannot,  in 
practice,  be  regarded  as  valid,  even  if  the  unbaptized  party  has  in 
fact  gone  away.  It  would  then  be  necessary  to  have  recourse  to 
the  Holy  See  {'). 

3.  Nevertheless,  the  obligation  of  interpellating  the  unbaptized    one  or  both 
partner  is  not  so  strict  as  to  be  incapable  of  any  dispensation. Ovi  the  interpellation 

contrary,  the  Holy  See  can  dispense  from  one,  and  even  from  both   maybesup- 

pltedby  a 
parts  of  the  prescribed  interpellation,  and  in  fact  frequently  does  dispensation. 

so. 

Thus  the  Holy  See  ordinarily  grants,  or  gives  a  faculty  to  grant 

a  dispensation  as  to  the  second  part  of  the  interpellation,  in  favour 

of  converted  polygamists.  It  is  then  sufficient  for  them  to  ask  the 

legitimate  wife,  being  still  unbaptized,  i.  e.,  the  wife  first  married, 

if  she  is  willing  to  become  a  Christian,  without  saying  anything 

about  peaceable   cohabitation.  If  the  answer  is  in  the  negative. 


I.  See  the  decree  of  the  C.S.O.,  17  Jan.  1900.  It  is  there  declared  that  the 
marriage  contracted  in  infidelity  continued  to  exist  in  the  case  proposed  :  a  con- 
verted husband  had  contracted  a  fresh  marriage  without  the  preliminary  inter- 
pellation ;  the  inquiry  had  not  been  instituted  until  after  the  marriage,  and  had 
proved  that  the  former  wife  neither  wished  to  embrace  the  faith,  nor  even  to 
answer  the  interpellation.  Cf.  also  the  S.  C.  de  P.  F.,  17  Jan.  1836,  in  the  Collec- 
tanea, n»  1330. 

3.  We  say,  practically,  because  theoretically  the  nullity  of  such  a  marriage  is 
open  to  question.  For,  the  documents  referred  to  do  not  sanction  the  principle  or 
tJiesis  of  the  invalidity  of  the  second  marriage  owing  to  the  absence  of  interpel- 
lation, when  the  separation  effected  by  the  infidel  party  is  certain  at  the  mo- 
ment of  the  second  marriage.  But  in  both  cases  the  practical  and  safer  solu- 
tion looks  upon  the  marriage  as  null,  and  requires  that  it  should  be  validated, 
as  a  matter  of  prudence  at  least,  either  by  a  renewal  of  consent  or  by  a  sanatio 
in  radice.  Moreover,  it  is  not  clear,  especially  in  the  former  case  (deer.  01 
1900),  that  the  infidel  party  had  actually  left  his  partner  at  the  moment 
when  the  second  marriage  was  contracted.  Cf.  Wernz,  o.  c,  IV,  no  703,  note  73 
and  p.  1033.  He  also  appeals  to  par.  45  of  the  Instruction  of  the  S,  C.  de 
P.  F.,  1883. 


336  THE  INDISSOLUBILITY   OF  MARRIAGE 

such  converts  may  then  lawfully  marry  any  one  of  their  pseudo- 
wives,  no  matter  which,  provided  she  has  been  baptized  ('). 

Still  greater  faculties  are  granted  to  certain  Ordinaries  (*)  in  distant  coun- 
tries :  they  have  power  to  dispense  from  both  parts  of  the  interpellation, 
that  is  to  say  :  *  to  dispense  the  converted  party  from  the  interpellation  of 
the  one  remaining  in  infidelity,  provided  that  every  effort  has  been  made, 
including  advertisement  in  the  public  press,  to  discover  the  whereabouts 
of  the  infidel,  without  success,  and  the  impossibillity  (')  of  giving  him  notice 
has  been  at  least  summarily  and  extra-judicially  established  in  this  way ; 
or,  again,  where  the  party  has  received  notice,  if  it  is  proved  that  he  has 
not  made  known  his  intention  within  the  time  fixed  by  the  interpellation 
(generally  a  month) ;  or  yet  again,  for  a  limited  number  of  twenty 
extraordinary  cases,  when  access  to  the  infidel  party  is  possible,  but  the 
interpellation  cannot  be  made  without  evident  risk  of  serious  injury 
either  to  the  converted  partner  or  to  other  Christians  »  (*). 

Moreover,  all  Bishops  and  Vicars  Apostolic  have  the  delegated  power  of 
dispensing  from  both  interpellations  in  urgent  cases,  whenever  it  is  clearly 
proved  that  the  infidel  partner  will  neither  embrace  the  faith,  nor  cohabit 
with  the  convert  without  blaspheming  the  Creator  (*). 

Total  dispensation,  therefore,  requires  and  supposes  a  reason, 
the  existence  of  which  must  be  established  at  least  summarily  and 
extrajudicially.  Such  is,  in  ordinary  cases  (as  indicated  in  the 
above-mentioned  indults),  the  impossibility  or  the  inutility  of  the 
interpellation,  or  the  silence  of  the  infidel  partner,  after  due  warn- 
ing that  he  must  give  an  answer  within  the  time  fixed  (®) ;  and,  in 

I.  This  indult  appears  in  Formula  I,  art.  ii :  «  Dispensandi  cum  gentibus  et 
infidelibus  plures  uxores  habentibus,  ut  post  conversionem  et  Baptismum,  quam 
ex  illis  maluerint,  si  etiam  ipsa  fidelis  fiat,  retinere  possint,  nisi  prima  voluerit 
converti  ».  Cf.  the  commentary  in  Putzer,  o.  c,  no  127,  and  compare  with 
MiCHBL,  o.  c,  p.  44,  who  refers  to  the  decree  of  the  C.  S.  O.,  June  1850 
(Collectan.,  no  1044),  in  support  of  the  statement  that  this  facuhy  is  also  applic- 
able to  the  case  of  a  woman  who  has  several  husbands. 

Should  it  happen  that  none  of  the  wives  of  the  convert  consents  to  conversion, 
or  is  accepted  by  him,  a  further  interpellation  of  the  first  and  true  wife  as  to 
peaceable  cohabitation  would  then  be  necessary.  If  he  experiences  a  fresh  refusal, 
he  can  then  marry  any  Christian  (Catholic)  woman. 

3.  Certain  Ordinaries  delegate  this  faculty  to  some  of  their  missionaries. 

3.  A  moral  impossibility  suffices. 

4.  The  text  is  quoted  in  De  Becker,  De  Matr.,  p.  455.  Cf.  also  Vermeersch, 
o.  c,  n*  77  ss. 

5.  C.  S.  0.  II  Aug.  1859,  Collectan.,  n»  1351. 

6.  Such  are  the  reasons  required  in  ordinary  cases,  according  to  various 


THE  INDISSOLUBILITY  OF  MARRIAGE  337 

extraordinary  cases,  an  evident  and  serious  danger,  either  to  the 
converted  partner,  or  to  other  Christians  (').  Outside  these  cases, 
in  default  of  a  sufficient,  or  sufficiently  certain  reason,  recourse 
must  be  had  to  the  Holy  See,  and  its  timely  decision  awaited  (*). 
Observe,  moreover,  that  in  conformity  with  the  decree  of  the 
S.C.  de  P.F.,  of  the  26  June  1820,  the  dispensation  requires  renew- 
al, if  more  than  a  year  elapses  before  the  convert  takes  advan- 
tage of  it  to  marry  again  (^). 

Note.  1.  There  are  circumstances  in  which  it  is  not  rightly  known  whe- 
ther the  conditions  of  the  Casus  Apostoli  are  fulfilled  or  not ;  in  doubt,  the 
question  must  be  decided  in  favour  of  the  faith,  i.  e.,  in  favour  of  the  liberty 
of  the  converted  partner  (*). 

2.  If  the  convert,  making  use  of  the  privilege,  contracts  a  new  marriage, 
he  must  do  so  with  a  Christian,  or  rather  with  a  Catholic  (Deer.  C.  S.  O., 
3  June  1874  and  17  July  1850,  in  the  Collectanea,  n°«  1357  and  1340).  The 
Church  can  dispense  from  the  impediment  of  disparitas  cultus  or  from 
that  of  mixta  religio,  but  makes  a  difficulty  about  doing  so  in  such  cases  ; 
and  the  general  faculty  that  one  may  have  for  dispensing  in  the  matter  of 
these  impediments,  is  not  applicable  in  this  case  (^) ;  and  rightly  so,  since 
the  new  marriage  is  permitted /or  the  advantage  of  the  faith  («). 

Corollary.  Though  with  us  the  number  of  marriages  between  unbaptized 
persons  increases  from  day  to  day,  the  whole  of  this  question  is  of  less 
practical  importance  here  than  in  missioitary  countries,  where  it  is  of  fre- 
quent application,  in  the  case  of  the  conversion  of  a  married  adult,  and 
especially  of  a  polygamist. 


Roman  decisions:  C.  S.  O.,  30  June  1866,  [Collectan.,  no  1354),  16  Aug.  1895 
[Anal.  eccL,  1897,  p.  13),  and  in  the  double  decree  of  13  March  1901  (Anal, 
eccl.,  1901,  p.  154).  The  Collectanta,  no  1331,  in  the  note,  and  Michel,  o.  c,  p, 
61-66,  show  the  scope  of  these  utterances. 

1.  C.  S.  O.,  39  Nov.  1882,  in  Collectanea,  no  1338,  p.  481. 

2.  See  the  decrees  by  which  the  Holy  See  gave  a  dispensation  in  the  case  of 
insanity,  and  in  that  of  an  infidel  party  who  gave  a  promise  of  peaceable 
cohabitation,  but  whose  word  could  not  be  relied  on.  Cf.  decrees  of  the  C.  S.  O., 
9  Dec.  190^  and  38  Nov.  1894,  in  the  Anal,  eccl.,  1904,  p.  191  and  1897,  p.  13  s. 

3.  Collectanea,  n°  1336.  It  is  different  if  there  has  been  interpellation  and  not 
dispensation  :  in  that  case  there  is  no  need  to  renew  the  former,  even  if  the 
fresh  marriage  has  been  delayed  for  more  than  a  year.  See  above,  and  SiCA,  o. 
c,  p.  414  s. 

4.  C.  S.  O.,  9  Apr.  1899.  Anal,  eccl.,  1899,  p,  236. 

5.  Collectanea,  n°  1356 ;  Sica,  o.  c,  p.  415  s. 

6.  Cf.  Michel,  o.  c,  p.  36  s.  as 


33^  THE  INt)ISSOLUBlLiTY   OF  MARRIAGE 

When  a  polygamist  asks  for  Baptism,  it  is  first  necessary,  as  we  have 
said  above,  to  inquire  into  the  nature  of  the  marriage  already  contracted 
by  him.  If  it  is  clearly  proved  that  he  is  already  validly  married,  after  his 
baptism,  his  first  wife,  as  being  the  only  lawful  one,  must  be  interpellated ; 
but  if  a  dispensation  has  been  duly  given,  it  is  sufficient  to  question  her 
as  to  her  intention  of  receiving  baptism.  If  she  refuses  to  become  a  con- 
vert, the  husband  may  then  take  at  will  any  one  of  his  pseudo-wives, 
provided  she  has  been  baptized  ('). 

If  however,  the  matter  is  in  doubt,  and  it  cannot  be  known  ior  certain 
if  the  convert's  first  marriage  was  valid,  or  which  was  his  first  wife,  then, 
for  the  advantage  of  the  faith,  he  is  at  liberty  to  take  which  he  prefers. 

Scholion. 

496. 

The  proceed-      "We  have  seen  that  the  Church  readily  grants  a  dispensation 

Church prov-  from  the  interpellations,  and  permits  the  converted   partner  to 

^ih^h^^f^^T  nia-rry  again,  g&tf«  when  there  is  no  decisive  proof  that  the  other  party 

dissolve  the   separates  (*) ;  though   this  seems  to  be  an  essential  condition   of 

^It^aelL  ^^^  PauHne  privilege.  We  must  also  observe  that  the  Holy  See 

considers  such  marriages  as  valid,  even  when  it  afterwards  comes 

to  light  that  the  infidel  was  in  no  sense  ill  disposed  at  the  time  that 

the  convert  contracted  a  second  fiuirriage,  or  had  even  already  received 

baptism  ('). 


1.  We  have  seen  that  in  the  case  of  polygamy,  the  interpellation  as  to  the 
wish  to  receive  baptism  is,  in  general,  sufficient,  since  the  Church  commonly 
dispenses  from  the  other  interpellation ;  but  this  only  empowers  the  convert 
to  marry  before  the  Church  one  of  his  pseudo-wives  who  consents  to  become 
a  Christian,  and  not  a  stranger, 

2.  This  uncertainty  exists  not  only  when  the  Church  dispenses  from  the  in- 
terpellations, but  also  when  she  permits  them  to  be  made  before  baptism. 

3.  €  Quae  quidem  matrimonia  (contracta  scil,  absque  praevia  interpella- 
tione,  ab  hac  impetrata  dispensatione),  etiamsi  postea  innotuerit  conjuges 
priores  infideles  suam  voluntatem  juste  impeditos  declarare  non  potuisse,  et 
adfidem  etiam  tempore  contracti  secundi  matrimonii  conversos  ftiisse,  nihilomi- 
nus  rescindi  nunquam  debere,  sed  valida  et  firma,  prolemque  inde  suscipien- 
dam  legitimam  fore  decernimus  ».  These  are  the  words  of  Gregory  XIII,  in 
his  Constitution,  Populis  ac  nationibus,  of  35  Jan.  1585,  CoUeotan.,  n°  1307, 
compare  with  no  1309,  towards  the  end,  where  we  find  similar  words  in  the 
Const.,  Insuprema  of  Benedict  XIV,  16  Jan.  1745.  See  also  the  Instruct,  of 
the  C.  S.  O.,  4  Feb.  1891,  in  the  Acta  S.  Sedis,  t.  XXVI,  p.  62  s.,  towards 
the  end. 

Notice  that  this  principle  applies  only  to  marriage  thus  contracted  with  a 
dispensation,  from  interpellation ;  for  if,  when  marriage  has  been    contracted 


THE  INDISSOLUBILITY  OF  MARRIAGE  339 

Now,  if  under  these  circumstances  the  second  marriage  is  declar- 
ed valid,  the  former  must  necessarily  have  been  dissolved  ;  and, 
as  we  cannot  say  that  it  was  dissolved  in  virtue  of  the  Pauline  pri- 
vilege, since  the  essential  conditions  for  that  are  wanting  here, 
apparently  we  can  only  conclude  that  it  has  been  dissolved  by  the 
authority  of  the  Sovereign  Po7itiff{^)  :  so  that  we  must  recognise  that 
the  Pope  has  the  power  to  dissolve  the  bond  of  legitimate  marri- 
age even  after  its  consummation,  supposing,  of  course,  the  bap- 
tism of  one  of  the  parties  ('). 

When  once  this  power  is  admitted  ('),  it  is  easy  to  understand 
the  readiness  with  which  the  Church,  as  we  have  seen,  solves  to 
the  advantage  of  the  faith,  i.  e.,  in  favour  of  the  of  the  liberty  of 
the  convert,  the  doubts  that  may  exist  as  to  the  validity  of  the 
marriage  contracted  before  baptism,  and  the  fulfilment  of  the 
conditions  of  the  Casus  Apostoli. 

In  pronouncing  such  doubtful  marriages  invalid,  the  Church 
does  more  than  make  a  mere  declaration  ;  and,  in  fact,  dissolves, 
as  far  as  it  may  be  necessar}%the  bond  that  restrains  the  liberty  of 
the  baptized  partner.  It  is  well  known  that  the  Church  does  not 
show  a  like  readiness  with  regard  to  the  marriages  of  the  faith- 
ful  (*). 


with  the  preliminary  interpellation  and  without  a  dispensation,  the  fact  of  the 
baptism  of  the  infidel  party,  before  the  second  marriage  of  the  previously 
converted  party,  is  established,  that  second  marriage  would  be  invalid,  and 
the  original  marriage  would  retain  its  validity  until  dissolved  in  some  other 
way,  as  for  instance,  by  the  exercise  of  the  Papal  authority. 

I.  Gregory  XIII  seems  to  recognise  this  power  whe  he  says  in  the  Const.,  quot- 
ed above  :  «  huiusmodi  connubia  inter  infideles  contracta,  vera  quidem,  non 
tamen  adeo  rata  censeri  ut  necessitate  suadente  dissolvi  non  possint  >. 

3.  The  act  of  dissolving  the  marriages  is  implicitly  contained  in  that  of  grant- 
ing a  dispensation  from  the  interpellation,  or  rather  in  the  dispensation  from 
observing  the  conditions  of  the  Casus  Apostoli. 

3.  Many  authorities  in  favour  of  this  opinion  may  be  found  in  the  Coll.  Brug., 
t.  IV,  p.  350,  and  in  De  Becker,  De  Matr.,  p.  457. 

4.  The  decree  of  the  C.  S.O.,of  18  May  1892,  ad  im,  emphasises  this  difference  : 
« Infidclts  who  declare  on  oath  that  they  have  not  contracted  an  indissoluble 
marriage  are  believed  without  further  evidence,  and  permitted  to  contract  a  new 
marriage,  while  Christians  must  bring  forward  some  legitimate  proof  ».  Collec- 
tan.,  no  2185.  See  also  above,  at  the  end  of  no  191  ;  The  Cath.  Encychp.,  under 
Divorce,  V,  p.  61  (Lehmkuhl) . 


340  THE  INDISSOLUBILITY   OF  MARRIAGE 

The  reason  why  the  Church  has  not,  up  to  the  present,  openly 
claimed  this  power,  according  to  Ds  Becker,  De  Matr.,  p.  460, 
is  to  be  found  in  the  fear  «  lest  the  faithful  in  their  weakness  and 
ignorance  of  these  matters  should  misunderstand  its  doctrine, 
especially  in  these  days  when  the  law  of  civil  divorce  has  unhappily 
been  introduced  into  so  many  countries,  and  come  to  look  upon 
the  divine  law  regarding  the  absolute  indissolubility  of  consummat- 
ed marriage  between  Christians  as  of  little  importance  >.  See 
above,  n^  188. 

Paragraph  IV.  THE  ABSOLUTE  INDISSOLUBILITY  OF  MARRIAGE 
RATUM  CONSUMMATUM. 

We  have  already  shown  that  every  validly  contracted  marriage 
is  indissoluble  by  the  natural  and  divine  law,  but  that,  neverthe- 
less, this  law  of  indissolubility  admits  of  various  derogations  ;  that 
within  certain  limits  the  conjugal  bond  may  be  dissolved  by  divine 
authority,  either  by  a  general  provision,  or  by  a  dispensation  given 
for  a  particular  case  (either  immediately  by  the  divine  authority, 
or  mediately  through  the  agency  of  the  Church).  We  have  also 
shown  that  this  involves  no  contradiction,  since  this  restricted 
dissolubility  contravenes  only  the  secondary  principles  of  the 
natural  law. 

These  derogations,  as  we  have  explained,  affect  marriage  ratum 
nan  consummatum,  as  well  as  marriage  legitimum,  whether  consum- 
mated or  not,  as  also  marriage  consummatum  et  ratum. 
197. 
The  absolute      Now,  as  regards  marriage  ratum  consummatum  :  the  bond  esta- 

^t^*ofnia*^t  ^^^^^^^  ^y  ^^  ^^  certainly  stronger  than  that  of  marriage  that  is 

age  ratum    merely  ratum  ;  nevertheless,  the  principles  that  we  have  laid  down 

fc^w'^-^yoj^e^  ^bove  logically  lead  us  to  affirm  that,  in  its  nature,  there  is  no 

aposferiori,  reason  why  it  should  not  admit  of  dissolution  by  the  divine  power, 

or  why  that  power  should  not  be  delegated  to  the  Church. 

It  is,  therefore,  simply  a  question  of  fact.  Has  God,  in  fact, 
conferred  such  a  power  upon  His  Church  ? 

In  accordance  with  the  authentic  teaching  of  the  Church 
and  the  constant  Tradition  of  the  Fathers,  in  opposition  to  the 
teaching  of  Protestants  and  Greeks  (*),  we  hold,  that  marriage 


I.  See  below,  in  note  ;  also  no  302a. 


THE  INDISSOLUBILITY  OF  MARRIAGE  34 1 

ratum  consummatum  is  absolutely  immune  from  any  dissolution, 
even  in  the  case  of  adultery  (*).  We  shall  now  proceed  to  make  this 
clear,  giving  special  attention  to  those  points  and  documents 
which  present  some  difficulty. 

I.  Teaching  of  the  Church. 

A.  Canons  of  the  Councils  and  Synods. 

Most  of  the  canons  affirm  the   principle  of  indissolubility,  and     '•  by  the 
many  of  them  explicitly  insist  on  it  even  in   connection  with  the  the  Church: 
case  of  adultery.  We  mention  in  particular  canons  8  and  9  of  the  /„  ^^^  Coun- 
council  of  Elvira  (Illiheritan.),    in  300  (')  ;  canon  8   of  the  ii"'      cilsand 
Synod   of  Carthage,   407  (^)  ;   canon  6  of  the  council  of  Angers 
(Andigav.),  435  (*) ;  canon  12  of  the  council  of  Nantes  (Nanneten.), 
probably  held  in  685  (*)  ;   canon  10  of  the  council  of  Hereford, 

I. This  case  would  be  the  case  most  easily  admitting  of  dissolution;  and  in  fact, 
as  we  shall  see,  some  Catholics  have  from  time  to  time  maintained  this  opinion, 
relying  on  the  somewhat  obscure  passage  of  Matth.,  XIX,  9, 

2.  «  Item  feminae  quae,  nulla  praecedente  causa,  reliquerint  viros  suos,  et  se 
copulaverint  aliis,  nee  in  fine  accipiant  communionem  >.  —  «  Item  fidelis  femina» 
quae  adulterum  maritum  reliquerit  fidelem,  et  alterum  ducit,  prohibeatur  ne 
ducat  ;  si  autem  duxerit,  non  prius  accipiat  communionem  nisi  quem  reliquerit 
prius  de  saccule  exierit ;  nisi  forte  necessitas  infirmitatis  compulerit  ».  Hardouin, 
o,  c,  I,  col.  251 ;  c.  8,  C.  XXXII,  7  ;  cf.  Hefele-Leclercq,  o.  c,  I*,  p.  312  ss. 

Ott,  o.  c,  p.  48  ss.,  quotes  also  canons  10  and  11,65  and  70  ;  in  his  opinion 
they  are  more  favourable  to  the  husband,  and  are  not  opposed  to  his  re-marri- 
age, where  his  wife  has  committed  adultery. 

3.  «  Placuit  ut,  secundum  Evangelium  et  Apostolicam  disciplinam,  neque 
dimissus  ab  uxore  neque  dimissa  a  marito  alteri  conjungantur,  sed  ita  maneant 
aut  sibimet  reconcilientur.  Quodsi  contempserint,  ad  poenitentiamrediganturw. 
Hardouin,  o.  c,  I,  col.  523  ;  Hefele-Leclekcq,  o.  c,  IP,  p.  156  ss.;  Geffcken, 
o.  c,  p.  31  ;  c.  5,  C.  XXXII,  qu.  7,  where  the  canon  of  which  we  are  speaking  is 
ascribed  to  the  council  of  Milevis. 

4.  «  Hi  quoque  qui  alienis  uxoribus,  superstitibus  ipsorum  maritis,  nomine 
conjugii  abutuntur,  a  communione  habeantur  extranei  >.  Hardouin,  o.  c,  II, 
col.  779  ;  Hefel^-Leclercq,  o.  c,  II*,  p.  883  ss. 

5.  «  Si  cujus  uxor  adulterium  perpetravit  et  hoc  a  viro  deprehensum  fiierit  et 
publicatum,  dimittat  uxorcm,  si  voluerit,  propter  fornicationem...,  ilia  vivente, 
nullatenus  aliam  accipiat...  Similis  forma  et  in  muliere  servabitur  :  si  eam  vir 
adulteraverit,  habet  potestatem  dimittendi  virum  propter  fornicationem,  maneat 
tamen  innupta,  quamdiu  vir  ejus  vixerit  ».  Hefele-Leclercq,  o.  c,  III*,  p. 
296  ss.;  Freisen,  o.  c,  p.  781  ;  but  consult  Geffcken,  o.  c,  p.  54,  Fahrner,  o.  c, 
p.  60s.  and  Hefele-Leclercq,  o.  c.,III-,  p.  1247;  they  observe  that  the  canons 
ascribed  to  the  council  of  Nantes  more  probably  belong  to  the  ninth  century. 


342  THE  INDISSOLUBILITY  OF  MARRIAGE 

673  (') ;  canon  10  of  the  council  of  Friuli  (Forojuliani),  796  (') ;  the 
decree  for  the  Armenians,  in  the  council  oi  Florence  (') ;  and  canon 
7,  Sess.  XXIV,  of  the  council  of  Trent  {*). 


I.  <  Nullus  conjugem  propriam,  nisi,  ut  sanctum  Evangelium  docet,  fornicatio- 
nis  causa,  reiinquat.  Quodsi  quisquam  propriam  expulerit  conjugem,  legitimo 
matrimonio  conjunctam,  si  Christianus  esse  recte  voluerit,  nulli  alteri  copuletur, 
sed  ita  permaneat,  aut  propriae  reconcilietur  conjugi  ».  Hardouin,  o.  c,  III,  col. 
1017  s. ;  Hefele-Leclercq,  o.  c.  III*,  p.  310  ss. ;  Bockenhoff,  o.  c,  p.  40  s. 

3.  «  Item  placuit  ut,  resoluto  fornicationis  causa  jugali  vinculo,  non  liceat  viro, 
quamdiu  adultera  vivit,  aliam  uxorem  ducere,  licet  sit  adultera  >.  Hardouin, 
o.  c,  IV,  col.  859  :  Hefele-Leclercq,  o.  c.  III*,  p.  1093  ss. 

3.  «  Quamvis  autem  ex  causa  fornicationis  liceat  tori  separationem  facere, 
non  tamen  aliud  matrimonium  contrahere  fas  est,  cum  matrimonii  legitime 
contracti  vinculum  perpetuum  sit  >.  Denzinger,  Enchiridion,  n.  702. 

4.  «  Si  quis  dixerit  Ecclesiam  errare,  quum  docuit  et  docet,  juxta  evangelicam 
et  apostolicam  doctrinam,  propter  adulterium  alterius  conjugum  matrimonii 
vinculum  non  posse  dissolvi ;  et  utrumque,  vel  etiam  innocentem,  qui  causam 
adulterio  non  dedit,  non  posse,  altero  conjugc  vivente,  aliud  matrimonium 
contrahere  ;  moecharique  eum  qui,  dimissa  adultera,  aliam  duxerit,  et  earn 
quae,  dimisso  adultero,  alii  nupserit,  anathema  sit  ». 

It  is  right  to  remark  here  that  the  Tridentine  Fathers,  at  the  request 
of  the  Venetian  ambassadors,  modified  the  first  draught  of  this  decree,  accord- 
ing to  which  the  indissolubility  of  marriage  in  the  case  af  adultery  was 
directly  taught  under  pain  of  anathema  ;  thus  the  excommunication,  as  it  now 
stands,  affects  only  those  who  accuse  the  Latin  Church  of  error,  and  conse- 
quently not  the  Greeks.  On  this  subject  see  Theiner,  o.  c,  II ;  on  p.  312  he  gives 
the  form  originally  proposed,  and  on  p.  338,  the  petition  of  the  ambassadors  of 
the  Republic  of  Venice. 

Nevertheless,  in  substance,  as  concerns  the  doctrine  itself,  and  not  the  way  in 
which  it  is  proposed,  the  two  forms  are  identical ;  and  those  who,  like  the 
Greeks,  defend  and  put  in  practice  the  dissolubility  of  marriage  on  account  of 
adultery,  are  guilty,  if  not  of  heresy,  at  least  of  undoubted  error  approaching 
heresy.  We  cannot,  therefore,  call  this  a  disciplinary  decree  ;  on  the  contrary,  it 
is  a  doctrinal  decree  ;  and  it  authoritatively  teaches  that  marriage  cannot  be 
dissolved  on  account  of  adultery.  The  Greeks  take  up  an  illogical  position,  when 
in  theory  and  practice  they  uphold  the  dissolubility  of  marriage,  and  at  the  same 
time  refrain  from  accusing  of  error  the  Latins  who  maintain  the  contrary. 
Cf.  Benedict  XIV,  De  Syn.  dioec,  1.  XIII,  c.  32,  no  4,  who  declares  that  docu- 
ments emanating  from  the  Holy  See  have,  on  many  occasions,  vindicated  this 
doctrine,  «  and  solemnly  proclaimed  the  Catholic  dogma  against  the  erro- 
neous idea  of  the  Greeks,  who  pretend  that  adultery  dissolves  the  bond  of  mar- 
riage » ;  Perrone,  o.  c,  III,  p.  359-388 ;  Palmieri,  o.  c,  p.  141  s. ;  Sasse,  o.  c, 
II,  p.  415  s.  426  s. ;  Vacant-Mangenot,  Dictionnaire  de  Theologie  catholique,  V" 
AdulUre  {V)  et  h  lien  du  tnariage  d'aprh  le  Concile  de  Trente,  col.  498-505. 


The  indissolubility  of  marriage  343 

We  may  add  to  this  list  other  concordant,  though  less  explicit, 
canons  :  canon  48  of  the  apostolic  canons  (');  canon  10  of  the  coun- 
cil of  Aries,  314  (*) ;  canon  19  of  the  first  Synod  called  S.  Patritii, 
450-456  (')  ;  canon  25  of  the  council  of  Agde  (Agaihensis),  506  (*)  ; 
canon  g  of  the  Synod  oiSoissons  (SuessoniensisJ,  744  (*). 

These  latter  documents  either  employ  general  formulas,  like  the 
apostohc  canons,  the  canons  of  St.  Patrick,  and  those  of  Soissons  ; 
or,  while  clearly  affirming  the  principle  of  indissolubility,  they 
exercise  prudence  in  the  application  of  it,  and  in  the  method  of 
imposing  it,  especially  with  regard  to  adultery  ;  their  reticence  is 
to  be  attributed  to  the  weakness  of  young  married  persons,  and 
especially  to  the  customs  then  existing  and  to  the  civil  laws  of  the 
time,  which  regulated  marriage  and  greatly  favoured  divorce  (•). 

This  practical  economy  is  especially  apparent  in  the  councils  of 
Aries  and  of  Agde.  The  former  clearly  lays  down  the  proposition 
of  strict  indissolubility,  both  in  the  text  and  in  the  heading  of  the 
chapter  :  «  That  the  husband  whose  wife  has  committed  adultery,  cannot 


1.  €  Si  quis  laicus  uxorem  propriam  pellens,  alteram  vel  ab  alio  dimissam 
duxerit,  communione  privetur  ».  Hardouin,o.  c,  I,  col.  38  ;  Frbisen,  o.  c,  p. 
771  ;  Hefele-Leclercq,  o.  c,  I*,  P- 632  s,  classes  this  canon  among  the  most 
ancient. 

2.  «  De  his  qui  conjuges  suas  in  adulterio  deprehendunt,  et  idem  sunt  adoles- 
centes,  et  prohibentur  nubere,  placuit  ut,  in  quantum  potest,  consilium  eis  detur, 
ne  viventibus  uxoribus,  licet  adulteris,  alias  accipiant  ».  Hardouin,  o.  c,  I,  col. 
265  ;  Hefele-Leclercq,  0.  c.,I',  p.  275  ss. 

3.  «  Mulier  Christiana,  quae  acceperit  virum  honestis  nuptiis,  et  postmodum 
discesserit  a  primo  etjunxerit  se  adulterio  (alias  adultero),  quae  haec  fecit 
excommunicationis  sit  ». Hardouin,  o.  c,  I,  col.  1792  ;  Hefele-Leclercq,  o,  c. 
n%  p.  888  ss. 

4.  See  the  text  in  Hardouin,  o.  c,  II,  col.  looi ;  see  also  Hefele-Leclercq, 
o.  c,  IP,  p.  973  ;  Fkeisen,  o.  c,  p.  781 ;  Fahrner,  o.  c,  p.  60. 

5.The  text  is  given  in  Hardouin,  o.c.III,  col.  1934  ;  see  Hefele-Leclercq,  0. 
c,  III*,  p.  854  ss.  and  1248  s. ;  Freisen,  o.  c,  p.  782  ;  Fahrner,  o.  c,  p.  73. 

6.  The  excessive  laxity  of  the  civil  laws  that  then  had  the  exclusive  control  of 
marriage,  was  the  principal  reason  that  prevented  the  Church,  before  the  tenth 
century,  from  showing  inflexibility  everywhere  and  at  all  times  in  the  matter  of 
indissolubility.  Inveterate  customs  and  existing  laws,  sanctioned  even  by  Chris- 
tian kings,  forced  it  to  be  prudent  and  tolerant,  and  to  advance  slowly  in  the 
task  ot  bringing  the  laws  and  customs  into  accord  with  the  strict  teaching.  Cf. 
Fahrner,  o.  c,  p.  61  s.  and  p.  75  s.  ;  Bockenhoff,  p.  45  s,  ;  see  also  what  we 
say  below,  nos  303a  and  203b. 


344  THE  INDISSOLUBILITY  OF  MARRIAGE 

take  another  during  the  lifetime  of  the  former  »  ;  and,  nevertheless,  it 
goes  on  to  suggest  that  in  practice  the  course  to  be  adopted  is  one 
of  persuasion.  In  the  latter  council,  the  Bishops  endeavour  to  trans- 
fer divorce  cases  to  their  own  tribunal,  and  so  to  withdraw  them 
from  the  civil  jurisdiction  which  was  always  too  ready  to  quash 
marriages  ;  they  declare  that  those  who  sue  for  divorce  without 
the  consent  of  the  Bishop,  expose  themselves  to  canonical  penal- 
ties ;  nevertheless  they  refrain  from  declaring  the  principle  of 
indissolubility  absolutely  strict  and  binding. 

in  ihe  decrees     B.  Decrees  of  the  Sovereign  Pontiffs. 

of  the 

Sovereign        The  principal  decrees,   from  our  point  of  view,  are   those  of 

ontjfs,     jj^^Qc^f^i  J  (401-417),   to  Exuperius  of  Toulouse  (*),  to  Probus  (') 

and  to  Victricius  (')  ;  those  of  Leo  I  (440-461),  to  Nicetas  (*)  ;  of 

Zachary  (741-752),  to  Pepin  (*);   of  Stephen  II  (754)  (*)  ;  Alexan- 


I.  «  De  his  requisivit  dilectio  tua  qui,  interveniente  repudio,  alii  se  matrimo- 
nio  copularunt.  Quos  in  utraque  parte  adulteros  esse  manifestum  est...  Qui  vero, 
vel  uxore  vivente,  quamvis  dissociatum  videatur  esse  conjugium,  ad  aliam 
copulam  festinarunt,  neque  possunt  adulteri  non  videri ».  Hardouin,  o.  c, 
I,  col.  1005,  c.  6, 

a.  «  We  declare  in  accordance  with  the  Catholic  faith...  that  the  union  with 
a  second  wife  during  the  lifetime  of  the  first,  cannot  be  in  any  way  law- 
ful, even  after  divorce  and  repudiation  (nee  divortio  ejecta)  ■».  Hardouin, 
o.   c,  I,  col.   1008. 

3.  «  Sic  enim  de  omnibus  haec  ratio  custoditur,  ut  quaecunque,  vivente  viro, 
alteri  nupserit,  habeatur  adultera  nee  ei  agendae  poenitentiae  licentia  conceda- 
tur,  nisi  unus  ex  eis  defunctus  fuerit  >.  Hardouin,  o.  c,  I,  col.  1002. 

4.  The  first  chapter  of  this  Pontifical  document  concerns  wives  whose  hus- 
bands have  been  reduced  to  captivity  and  are  looked  upon  as  dead,  and 
who  have  consequently  married  again.  The  Pope  says  that,  if  the  first  hus- 
bands are  restored  to  liberty  and  return  to  their  homes,  «  we  must  hold 
that  these  lawful  unions  arc  to  be  resumed,...  everything  ought  to  be  done 
that  each  may  recover  his  right  ».  Ibid.,  c.  3.  Hardouin,  o.  c,  I,  col.  1770. 

5.  He  insists  on  the  prohibition  forbidding  the  party  who  puts  away  his 
partner,  to  contract  a  fresh  marriage,  and  appeals  (ch.  7)  to  the  48th  Apos- 
tolic Canon,  and  also  (ch.  13)  to  the  canon  of  the  nth  Synod  of  Carthage, 
already  mentioned.  See  the  text  of  the  two  canons  in  Hardouin,  o.  c,  III, 
col.,  1902  and  1903. 

6.  Chapter  5  of  the  rescript  of  Stephen  II  asks  «  if  a  husband  who  has 
repudiated  his  wife  can  take  another  during  the  lifetime  of  the  former  »,  and 
answers  word  for  word  from  the  text  of  Innocent  I  to  Exuperius,  as  quoted 
above.  Further  on,  ch.  19,  the  case  is  put  of  a  wife  who  married  again  during 


THE  INDISSOLUBILITY  OF  MARRIAGE  345 

der  III  (*)  ;  of  Innocent  III  (')  ;  and  of  Leo  XIII  in  the  Encyclical 
Arcanum  ('). 

The  teaching  of  the  Holy  See  is  no  less  manifest  in  the 
determined  resistance  that  it  made  to  kings  and  princes  who 
endeavoured  to  set  aside  the  law  of  indissolubility  (*).  It  is 
enough  to  mention  Lothaire  (*),  PhiHp  Augustus  of  France  (®), 
Henry  VHI  of  England  ('),  etc.  (»). 


the  captivity  of  her  first  husband,  who  subsequently  returned  home.  Here  again 
it  is  the  solution  given  by  Leo  I,  in  his  rescript  to  Nicetas,  that  is  adopted.  Cf. 
Hardouin,   o.    c,  in,  col.  1987  and  1988. 

I.  C.  7,  X,  III,  35  ;   see  the  text  above   in  no   188. 

a.  C.  7  and  8,   X,  IV,   rg. 

3.  €  In  the  great  confusion  of  opinions,  however,  which  spreads  more  widely 
day  by  day,  it  should  further  be  known  that  no  power  can  dissolve  the  bond  of 
Christian  marriage  when  it  has  been  ratified  and  consummated  ;  and  that  there- 
fore those  husbands  and  wives  are  guilty  of  a  manifest  crime  who  wish,  for 
whatsoever  reason  it  may  be,  to  be  united  in  a  second  marriage  before 
the  first  one  has  been  ended  by  death  ».  Authorised  Translation,  London,  1880. 

4.  Leo  XIII,  in  the  Encycl.  Arcanum,  extols  this  invincible  resistance  on  the 
part  of  the  Church. 

5.  After  having  repudiated  his  wife  Teutberge  in  857,  Z.o</ta»f*  wished  to  marry 
Waldrade,  with  whom  he  was  living  in  marital  relations.  He  endeavoured  to 
obtain  a  declaration  of  nullity  against  his  first  marriage  (see  below,  no  243,  in 
the  note)  ;  and  having  extorted  it  from  several  bishops,  he  publicly  celebrated 
his  nuptials  with  his  concubine.  But  the  Pope  Nicholas,  intervened  and  reso- 
lutely resisted  the  wishes  of  the  king.  He  stood  his  ground  with  heroic  firmness, 
and  only  laid  aside  his  arms  when  Lothaire  had  dismissed  Waldrade  and  taken 
back  his  lawful  wife.  Cf.  Hefelr-Leclercq,  o.  c,  IV',  p.  237  ss. ;  comp.  n"  342, 
in  the  note. 

6.  Philip  Augustus  from  the  morrow  of  his  marriage,  had  broken  with  his  wife 
Ingeburge,  with  the  intention  of  marrying  Anne  of  Meran.  At  his  instance,  some 
of  the  bishops  of  France  consented  to  declare  his  former  marriage  null.  The 
queen,  in  her  misfortune,  appealed  to  Innocent  III,  who  quashed  the  decision  of 
the  bishops,  laid  the  whole  of  France  under  an  interdict,  and  so  forced  the  king 
to  take  back  Ingeburge.  See  Coulon,  Le  Divorce,  p.  155-161 ;  Castelein,  o.  c  p. 
550  s. 

7.  Henry  VIII  had  first  married,  by  dispensation,  Catherine  of  Arragon,  his 
brother's  widow.  At  a  later  date,  when  his  affections  had  fallen  on  Anne  Boleyn, 
he  claimed  to  have  his  marriage  annulled,  and  succeeded  in  doing  so  before  a 
tribunal  of  English  bishops,  who  put  forward  as  a  pretext  the  invalidity  of  the 
dispensation  in  so  near  a  degree.  Clement  VII,  in  1534,  proclaimed  the  marriage 
with  Catherine  of  Arragon  valid  and  indissoluble,  and  allowed  the  king  and  the 
whole  country  to  fall  into  schism,  rather  than  go  against  the  principle.  See 
below,  n.  304,  and  above,  n.  178,  where  we  mentioned  that  Clement  VII  seems 
to  have  hesitated  and,  at  first,  to  have  been  inclined  towards  permittmg  poly- 
gamy to  Henry  VIII,  in  such  a  way  as  to  take  another  wife  whilst  still  keeping 
Catherine. 

8.  Pius  VII,  in  i8o6,  showed  himself  equally  firm  in  resisting  the  entreaties 


346  THE  INDISSOLUBILITY  OF  MARRIAGE 

This  same  doctrine  caused  the  Roman  Pontiffs,  even  from  the 
earliest  ages,  when  the  Church  had  not  as  yet  effectively  taken  in 
hand  the  regulation  of  marriage,  to  exert  their  influence  on  the 
civil  laws,  both  Roman  and  Barbarian,  in  order  to  bring  them 
little  by  little  more  into  accord  with  the  law  of  Christian  marri- 
age. Above  all,  the  Church  strove  to  establish  equality  between 
man  and  woman,  and  to  do  away  with  the  right  which  the  hus- 
band alone  formerly  enjoyed  of  divorcing  his  wife  almost  at  will ; 
it  further  exerted  itself  to  diminish  the  number  oi  causes  of 
divorce,  to  render  the  obtaining  of  it  more  difficult,  and  the  conse- 
quences more  burdensome  (')  ;  finally  it  succeeded  in  having  the 
principle  of  indissolubility  recognised  and  sanctioned  by  the  civil 
authority.  Even  the  adversaries  of  the  Church  acknowledge  the 
salutary  and  preponderating  influence  exercised  by  it  in  this 
matter  ('). 

Some  of  them,  however,  urge  against  us  instances  of  dissolu- 
tion pronounced  by  the  Holy  See  in  favour  of  royal  and  distin- 
guished personages  ;  but  a  closer  examination  reveals  the  fact 
that  these  were  cases  either  of  non-consummated  marriage  (')  or 
of  simple  declaration  of  nullity  (*).  There  is  a  great  difference 
between  such  a  declaration  and  an  act  that  directly  dissolves 


and  threats  of  Napoleon,  who  wished  to  force  him  to  dissolve  the  marriage  of 
his  brother  Jerome.  Cf.  Welschlinger,  o.  c,  p.  83  ;  Revue  prat.  d'Apolog.,  1911, 
t.  XI,  p.  775  ;  Diet,  apolog.  de  la  Foi  cath.  (A.  d'Ales),  1910,  under  Divorce  des 
Princes  et  I'Eglise  ;  Bockenhoff,  o.  c,  p.  41-44. 

1.  See  below,  n^s  203  and  203b  ;  in  the  latter  passage  we  speak  of  the 
influence  of  Christianity  on  the  ancient  civil  laws  of  the  Germans  in  the  matter 
of  divorce.  This  influence  made  itself  felt  the  later  in  some  instances,  as  several 
German  tribes  had  embraced  Arianism  before  their  conversion  to  the  Catholic 
Faith. 

2.  Cf.  Geffcken,  o.  c,  p.  45  s.  and  51  ;  Lemaire,  0.  c,  p.  35  s.,  who  also  treats 
of  this  influence. 

3.  Such  was  the  dissolution  pronounced  by  Alexander  VI  in  favour  of  Lucrezia 
Borgia ;  cf.  Pastor,  Histoire  des  Papes  (tr.  de  Furcy  Raynaud),  1898,  t.  V,  p. 
498  s.,  who  notes  that  the  marriage  had  been  denounced  at  Rome  as  non-con- 
summated. 

4.  A  recent  example  is  the  decision  given  in  the  case  of  the  marriage  of  the 
Prince  of  Monaco  with  the  Princess  Hamilton.  This  marriage  was  declared  null 
on  the  grounds  of  violence  and  fear.  Cf.  Bonomelli,  o,  c,  54. 


THB  INDISSOLUBILITY  OF  MARRIAGE  347 

the  conjugal  bond  ;  some  public  assemblies  and  even  some  jurists 
would   do  well  to  bear  this  in  mind  (*). 

198. 

II.  Teaching  of  the  fathers  and  ecclesiastical  writers.     2.  by  the 

teaching  of 
It  is  impossible  for  us  here    to  enter  fully  into  this  matter,    the  Fathers 

and  we   must  refer  the  reader  to    writers  who  make  it   their  luMl'wr  iters. 

special  business  to  do  so.  We  may  mention  Perrone,  o.  c,  III, 

p.  219-352  ;  CiGoi,  o.  c,  ;  De  Roskovany  (*)  ;  Palmieri,  o.  c,  p. 

141  ss.  (') ;  Denner,  o.  c.  ;  Ott,  o.  c,  ;  Rouet  de  Journel,  o.  c. 

We  confine  ourselves  to  a  few  general  observations  : 

1.  The  greater  part  of  the  Fathers  and  writers  oi  iho,  earliest 

centuries  (they  may  be  easily  found  on  referring  to  the  works  we 

have  just  enumerated),  proclaim  the  absolute  indissolubility  of 

marriage  ratum  consummattim,  and  not  unfrequently  they  do  so 

with  express  reference  to  the  case  of  repudiation  for  adultery  (*)• 


1.  Cf.  PisANi,  o.  c;  BouDiNHON,  Le  mariage  religieux,  p.  63  s. 

It  was  also  merely  a  declaratory  sentence  that  was  pronounced  by  Alexander 
VI,  in  the  case  of  the  marriage  of  Louis  XII  of  France  and  queen  Joan,  and  by 
Clement  VIII  in  that  of  Henry  IV.  This  latter  marriage  in  particular  was  declar- 
ed null  in  the  first  place,  on  account  of  a  diriment  impediment  which  had 
not  been  removed  by  dispensation,  and  secondly,  because  the  consent  of  the 
queen  had  not  been  freely  given. 

As  regards  the  marriage  of  Napoleon  with  Josephine  de  Beauharnais,  Pius 
VII  always  refused  to  confirm  the  sentence  of  nullity  officially  pronounced  in 
Paris,  based  on  the  absence  of  witnesses  at  the  time  of  the  celebration  of  the 
marriage,  and  on  the  want  of  consent  on  the  part  of  the  emperor,  as  having,  in 
1804,  reluctantly  given  his  consent,  being  constrained  by  Pius  VII,  in  order  to 
validate  his  civil  marriage  of  1796.  Cf.  Welschinger,  o.  c.  ;  Etudes,  t.  xxxviii, 
p.  606  ss. 

2.  Stipplementa  ad  collectioncs  monumentorum,  I,  p.  457  s. 

3.  See  also  Quinquet  de  Monjour,  o.  c,,  p.  48-53  and  81-100. 

4.  One  wonders  what  fixed  idea  impels  certain  authors,  like  Dessaules,  o.  c, 
p.  302  s.,  to  make  the  wild  statement :  «  que  S.  Augustin  pose  le  premier  Ic  prin- 
cipe  de  I'indissolubilit^  absolue,  meme  en  cas  d'adultere,  et  le  fait  adopter  en 
principe  dans  I'Eglise  d'Occident  >.  Alex.  Dumas  (fils),  quoted  by  Quinquet  de 
MoNjouR,  o.  c,  p.  50,  especially  distinguishes  himself  in  this  way  in  his  work, 
La  Question  du  Divorce,  p.  213  :  «  Le  divorce  a  ete  consenti  et  approuve  par 
I'Eglise  pendant  les  huit  premiers  siecles...  Les  Conciles  jusqu'a  cette  epoque, 
ou  ne  parlent  pas  du  divorce  (ce  qui  demontre  qu'ils  I'admmettent  (!),  ou  le  con" 
sacrent  ou  le  tolferent  ».  To  these  vagaries  we  oppose  the  opinion,  beyond 
suspicion  of  partiality,  of  Loning,  o.  c,  II,  p.  607  :  c  Es  findet  sich  aus  den  ersten 
drei  Jahrhundcrten  kein  Zeugniss  dafur,  dass  die  Kirche  Wiederverheirathung 


348  THE  INDISSOLUBILITY   OF   MARRIAGE 

On  the  other  hand,  their  writings  show  that  the  practice  of  the 
faithful  was  not  always  in  conformity  with  this  theory.  Thus 
Origen  complains  that  «  contrary  to  the  Scripture  law,  some  rulers 
in  the  Church  permitted  a  woman  to  marry  again  during  the 
lifetime  of  her  husband  »  (').  5.  Asterius  Amasenus  inveighs  against 
his  contemporaries  who  change  their  wives  like  their  garments, 
and  whose  marriage  beds  are  as  readily  moved  as  the  boots  at  a 
fair  (*)  ;  while  Si.  Augustine  says  (')  :  «  who  does  not  know  how 
rare  are  those  wives  who  live  so  chastely  whith  their  husbands, 
that  they  never  seek  for  others,  even  at  the  risk  of  repudiation  ?  » 
These  disorders  were  greatly  promoted  by  the  civil  laws  in  force  at 
the  time  (*). 

2.  At  a  later  date,  especially  from  the  beginning  of  the  IX'*^  cen- 
tury, the  doctrine  of  absolute  indissolubility  became  altogether 
unanimous,  and  the  Doctors  attached  so  much  importance  to  it, 
that  many  of  them  applied  it  to  all  true  marriage  without 
distinction.  The  practice  of  sometimes  dissolving  non-consummated 
marriage  became  a  difficulty  to  them,  and  to  reconcile  it  with 
their  theory  they  denied  such  the  title  of  true  marriage,  and 
recognised  in  it  only  an  inceptive  marriage  (^).  This  was  the  case 
with  Hincmar  of  Rheims  (*)  and  the  Doctors  of  the  School  of 
Bologna,  and  thus  Gratian  argues,  qu.  7,  Causa  XXXII. 

199. 

Solution  of      III.  Documents  that  present  some  difficulty. 

difficulties  .      „  ^ «     • 

drawn  from       A.  Texts  of  Scripture. 

A  difficulty  arises  from  two  passages  in  St.  Matthew,  V,  32  (')  and  XIX, 

eines  geschiedenen  Ehegatten  bei  Lebzeiten  des  ander  Theils  fiir  schriftgemass 
gehalten  hatte  ». 

1.  Comment,  in  Matth.,  t.  XIV,  n.  23,  in  Migne,  XIII,  col.  1246. 

2.  Homelia  in  locum  Evangel  it  sec.  Matth. :  an  liceat  homini  dimittere  uxorem 
suam  quacunque  ex  causa.  Migne,  XL,  (P.  Gr.),  col.  227. 

3.  De  conjugiis  aduUerinis,  II,  ch.  17 ;  Migne,  XL,  col.  483  s. 

4.  Cf.  LoNiNG,  o.  c,  II,  p.  607  ss. 

5.  See  above,  nos  60  and  187,  on  the  subject  of  the  copulatheoria. 

6.  Geffcken,  o.  c,  p.  60  s.,  gives  the  substance  of  the  teaching  of  Hincmar, 
put  forward  especially  on  the  occasion  of  the  divorce  of  Lothaire.  See  also 
ScHRORS  and  Sdralek,  o.  c.  Hincmar's  account  of  the  divorce  of  Lothaire  may 
be  found  in  Migne,  CXXV,  col.  619-772. 

7.  €  But  I  say  to  you,  that  whosoever  shall  put  away  his  wife,  excepting  the 
cause  of  fornication  (uapeKTd?  X6tou  iropveia?),  maketh  her  to  commit  adultery  ; 
and  he  that  shall  marr>'  her  that  is  put  away,  committeth  adultery  ». 


THE  INDISSOLUBILITY  OF  MARRIAGE  349 

9  ('),  from  which  it  would  at  first  sight  seem  that  we  might  conclude  :  'IS.  Mati^-, 
therefore  he  who  puts  away  his  adulterous  wife  does  not  make  her  commit     ^j^  g^. 
adultery  ;   —  and  he  who  puts  away  his  wife  for  fornication  and  takes 
another,  does  not  commit  adultery. 

Assuming  that  the  texts  in  question  are  authentic  (-)  ;  that  they  relate  to 
lawful  (■'),  Christian  (*),  consummated  marriage  ;  and  that  fornication  is 
here  taken  for  an  act  subsequent  to  marriage  C*) :  we  say  :  that  the  passages 
quoted  are  perfectly  reconcilable  with  the  Catholic  doctrine  concerning 
the  absolute  indissolubility  of  marriage  ratum  consommatum.  The  proof 
is  as  follows  : 

1.  Indirect  proof:  there  are  several  objections  to  the  admissibility  of    a)  indirect 
the  interpretation  from  which  the  difficulty  arises, 

a/  In  the  first  place,  the  very  opposition,  that  the  texts  clearly  set  forth, 
between  the  imperfection  of  the  Mosaic  law  and  the  perfection  of  the  New 
Law,  with  relation  to  marriage,  is  on  our  side  ;  for  it  is  there  said  that  the 
new  law  restores  marriage  to  its  original  stability;  that  it  had  been  derogat- 
ed from,  out  of  condescension  to  the  hardness  of  heart  of  the  Jews  ;  and 
that  this  derogation  must  now  come  to  an  end.  Cf.  V,  31-32  and  XIX,  8-9. 


solution 


1.  «  Whosoever  shall  put  away  his  wife,  except  it  be  for  fornication  {\xr\  i.Tz\ 
TTopveia),  and  shall  marry  another,  committeth  adultery  :  and  he  that  shall 
marry  her  that  is  put  away,  committeth  adultery  ». 

2.  LoiSY  holds  the  contrary,  in  his  Evungiles  Synoptiques,  t.  I,  p.  575  s. ;  but 
the  most  ancient  manuscripts  contain  the  difficulty  in  question.  Cf.  Villien, 
Divorce,  coi.  1451.  Circa  variantes  lectiones,  videsis  Watkins,  o.  c,  p.  153-167. 

3.  Some  writers  have  held  that  this  is  here  a  question  of  concubinage,  as  if 
Christ  had  said  that  marriage  could  be  dissolved  only  when  the  union  was 
irregular  ;  but  the  text  and  the  whole  context  are  opposed  to  this  explanation  ; 
there  is  no  question  of  other  than  duly  contracted  marriage.  Cf.  Ott,  o.  c, 
p.  261  ss. 

4.  Others  have  imagined  that  the  words  of  Christ  concerned  Jewish  marriage, 
and  permitted  dissolution  in  case  of  adultery  :  but  again,  they  do  not  take  into 
account  the  whole  context,  which  clearly  shows  that  it  is  a  question  of  marriage 
opposed  to  that  of  the  Jews.  Cf.  V,  31-32,  XIX,  8-g.  Other  writers  have  been  of 
opinion  that  Our  Lord  had  in  view  marriages  contracted  in  infidelity,  and  here 
taught  that  the  bond  of  such  unions  could  be  broken  in  the  Casus  Apostoli.  They 
understood  uopveia  in  the  sense  of  diriaTia.  See  Ott,  o.  c,  p.  254'6i. 

5.  There  are  also  some  who  understand  {.he  word  formcation,  iropveia,  in  its 
strict  sense,  as  a  sexual  act  preceding  marriage  ;  and  they  see  therein  a  scriptu- 
ral reason  for  dissolving  the  subsequent  marriage,  which  would  be  invalid 
because  contracted  under  the  implied  condition  of  virginity,  like  that  mentioned 
in  Deut.,  XXII,  13-22.  See  in  Perrons,  o.  c,  III,  p.  i6i  ss.,  the  account  and  refu- 
tation  of  this  opinion ;  and  cf.  Ott,  o.  c,  p.  230  ss. 


350  THE  INDISSOLUBILITY   OF  MARRIAGE 

This  opposition  is  the  more  significant,  as  the  expression  X6to?  Tropveia? 
corresponds  to  the  Hebrew  erwath  dahbar,  as  understood  by  the  school  of 
Schammai,  which  permitted  the  Jews  dissolution  of  the  bond  in  case  of 
erwath.  If  then  Christ  had  permitted  divorce  for  fornication  (tropveia),  his 
teaching  on  the  subject  of  marriage,  would.have  been  neither  more  strict  nor 
more  perfect  than  that  of  the  Jews  who  belonged  to  the  school  of  Schammai. 

b/  The  parallel  passages  of  Mark  X,  ii  (*),  and  of  Luke  XVI,  i8  (*),  make 
Christ  say  absolutely  and  without  restriction,  that  the  husband  who  puts 
away  his  wife  and  takes  another  commits  adultery. 

c/  The  second  part  of  verse  33,  in  the  V^'^  chapter  of  St.  Matthew  ('), 
declares  without  reserve  or  exception  that  he  that  shall  marry  her  that  is 
put  away,  committeth  adultery  ;  but  this  would  not  be  true  if,  as  most  Pro- 
testants and  Greeks  pretend,  the  wife  put  away  for  adultery  were  set  free 
from  the  conjugal  bond  (*). 

d/  Moreover,  if  the  sin  of  adultery  had  the  power  of  dissolving  the  marri- 
age, her  guilt  would  give  the  repudiated  wife  an  advantage  ;  and  this 
would  prove  an  incitement  to  adultery  (*).  This  argument,  though  wholly 
indirect,  is  not  without  force. 


1.  «  Whosoever  shall  put  away  his  wife  and  marry  another,  committeth  adul- 
tery against  her  ».  The  parallelism  is  yet  more  striking  when  the  two  Greek  texts 
are  compared.  Cf.  the  ed.  Nestle. 

2.  €  Everyone  that  putteth  away  his  wife,  and  marrieth  another,  committeth 
adultery ;  and  he  that  marrieth  her  that  is  put  away  from  her  husband,  commit- 
teth adultery  >. 

3.  This  second  part  of  the  verse  is  omitted  in  the  Greek  edition  of  Nestle, 
Matth.,  XIX,  9  ;  but  cf.  Knabbnbauwer,  Commcntarius  in  Bvang.  sec.  S.  Mat- 
thaeum,  II.  p.  138,  who  gives  the  Mss.  that  retain,  and  those  that  omit  it. 

4.  «  Gerade  diese  ausnahmslose  Fassung  zeigt  deutlich,  dass  von  irgend  einer 
erlaubten  und  darum  auch  vor  Gott  giiltigen  Entlassung  keine  Rede  ist  ».  B. 
Weiss,  Das  MaUMus-Evangelium,  1898,  Gottingen,  p.  118,  where  he  says  that  it 
is  «  ganz  willkiirlich  »  to  suggest  supplying  in  the  second  part  of  the  verse  the 
same  exception  as  in  the  first  :  excepting  the  cause  of  fornication  ;  and  the  more 
so,  as  Zahn  remarks,  Das  Evangelium  des  Matthaus,  Leipzig,  1903,  p.  360,  that 
«  Die  Wiederholung  wesentlicher  Satzteile  in  paralielen  Darstellungen  anlicher 
Falle  die  Regel  ist  »,  as  is  apparent  e.g.,  a  little  further  on,  in  Matth.  VI,  4, 
6,  18. 

5.  «  Christ  would  then,  as  it  were,  put  a  premium  on  adultery,  since  the  adul- 
terous wife  would  be  free  to  contract  a  fresh  marriage,  the  first  being  dissolved, 
while  the  innocent  and  chaste  wife,  unjustly  repudiated  by  her  husband,  would 
be  bound  to  perpetual  continency.  Would  not  this  open  the  way  to  a  multitude 
of  crimes  ?  If  a  husband  had  much  to  suffer  from  his  wife, or  if  he  were  entangl- 
ed in  the  toils  of  a  disorderly  attachment,  would  he  not  feel  strongly  impelled 


THE  INDISSOLUBILITY   OF  MARRIAGE  35I 

e/  Finally,  if  the  bond  could  still  be  broken  on  account  of  adultery,  the 
disciples  would  have  had  no  reason  for  crying  out  against  the  severity 
of  the  marriage  law.  Cf.  Matth.,  XIX,  10. 

2.  Direct  proof :  without  in  any  way  twisting  the  text,  it  is  possible  b)  direct  solu- 
to  give  it  a  perfectly  reasonable  interpretation,  that  is  quite  in  accord        '""*• 
with  Catholic  doctrine,  and  excludes  the  dissolution  of  marriage  on  account 
of  adultery. 

a/  Let  us  take  first  the  first  passage,  Matth.  V,  32,  and  let  us  assume  as 
logical  the  conclusion  that  some  have  drawn  from  it,  viz...  «  Therefore  he 
who  puts  away  his  adulterous  wife,  does  not  make  her  an  adulteress  » .  Does 
it  follow  from  this  that  the  marriage  bond  is  dissolved  ?  We  cannot  see  that 
it  does.  Granting  that  the  outraged  husband  has  the  right  to  put  her  away, 
the  text  would  simply  affirm  that  the  sin  committed  by  the  adulteress  in 
marrying  again,  is  not  to  be  imputed  to  the  husband  who  put  her  away  (*). 
Far  from  proclaiming  the  dissolution  of  the  marriage,  the  passage  would, 
on  the  contrary,  state  indirectly  and  implicitly  that  marriage  with  a 
woman  thus  put  away,  for  any  cause  whatever,  and  even  for  adultery,  is 
itself  adultery.  Thus  the  sense  of  the  first  part  of  the  verse  would  fit  in 
with  that  of  the  second  part,  where  the  same  doctrine  is  taught  directly 
and  explicitly. 

b/  Now,  with  regard  to  the  second  text,  Matth.  XIX,  9  (*).  The  words 
of  Christ  in  this  passage  are  capable  of  several  interpretations  : 

a/  Some  authors  see  in  this  an  ellipsis  to  be  supplied  in  the  following  way : 
he  who  shall  put  away  his  wife,  which  is  lawful  only  in  the  case  of  forni- 
cation, an  J  take  another,  commits  adultery  ;  in  this  case  the  exception 
regarding  fornication  is  limited,  as  far  as  the  sense  and  grammatical  con- 
struction are  concerned,  to  the  first  part  of  the  proposition,  viz.,  he  that 
shall  put  away  (').  All  that  can  be  deduced  from  this  is,  that  the  wife  may 


to  adultery,  if  such  a  sin  could  at  once  dissolve  the  marriage  bond  ?  »  Knaben- 
BAUWER,  o.  c,  I,  p.  326. 

i.It  might  also  be  understood  thus  :  the  husband  who  repudiates  his  adulterous 
wife,  does  not  make  her  an  adulteress,  because  she  is  one  already  through  her 
own  fault. 

3.  Those  who  are  not  altogether  satisfied  with  the  explanation  given  under  a/ 
will  find  what  follows  applicable  to  V,  32,  also.  We  are  aware  that  some  au- 
thors translate  the  Hebrew  form  hiphil,  whence  the  Greek  |joixaa6ai  iroiei 
is  derived,  not  by  facit  earn  moechari,  but  by  adulterium  opus  pottit  (commits  an 
act  of  adultery  against  her) .  Cf.  Ott,  o.  c,  p.  372  s.  and  295.  s. 

3.  QUINQUET  DE  MONjouR,  o.  c,  p.  12,  proposes  an  analogous  case  :  <  Supposez 
une  loi  ainsi  conQuc  :  quiconque  aura  chatie  son  fils,  sauf  pour  de  graves  raisons, 
ct  I'aura  tue,  sera  puni.  —  Direz-vous  qu'en  certains  cas  le  droit  est  donn6  au 


352  THE  INDISSOLUBILITY   OF  MARRIAGE 

be  put  away  for  fornication,  that  is  to  say,  that  the  husband  may  separate 
from  her,  but  that  the  conjugal  bond  remains  unbroken  (') ;  and  thus  the 
text  would  serve  to  support  the  doctrine  contained  in  the  second  part  of  V, 
€  and  he  that  shall  marry  her  that  is  put  away  committeth  adultery  >  ;  and 
St.  Matthew  would  be  in  perfect  agreement  with  St.  Mark,  X,  ii,  St.  Luke, 
XVI,  i8,  and  St.  Paul,  IJCor.,  VII,  ii. 

p/ Other  interpreters  give  to  the  words,  «  except  it  be  for  fornication  », 
a  different  sense.  According  to  them,  the  words  signify  that  Our  Lord 
abstracted  altogether  from  the  case  in  which  a  man  puts  away  his  wife  for 
fornication,  and  said  nothing  about  it.  This  is  the  opinion  of  zahn,  o.  c,  p. 
583  s.  :  «  Here  also,  as  in  V,  32  (^),  Jesus  excludes  from  His  condemnation 
the  case  of  an  actual  breach  of  the  marriage  vow  resulting  from  unchastity 
on  the  part  of  the  wife  without  saying  what  should  be  done,  or  what 
judgment  should  be  passed  in  such  a  case  »  ;  and  further :  «  The  text 
gives  no  indication  as  ^to  how  Jesus  would  have  decided  in  a  case  where 
a  man  leaves  his  wife  without  reasonable  ground  but  without  contracting 
a  fresh  marriage,  or  in  a  case  where  he  puts  away  an  adulterous  wife,  and 
then  marries  again  »  (^). 

y/  Finally  there  are  some  who  understand  the  words  Trap6KT6(;  X6you 
iropvelaa  and  m  im  iropveia  not  in  an  exclusive  but  in  an  inclusive 
or  comprehensive  sense.  The  interpretation  proposed  by  Oischin- 
GER  (*)  furnishes  an  example  of  this.  According  to  him,  the  word  irapeKTos 
(in  the  first  passage,  Matth.,  V,  32),  may  have  either  an  exclusive  or  a 
comprehensive  signification  according  to  the  context  (^)  ;  and  thus  the 


pere  de  mettre  son  fils  k  mort,  et  que  I'excuse  absolutoirc,  rimpunite  assur^e 
aux  coups,  doit  s'6tendre  au  fait  du  meurtre  ?  ». 

I.  This  putting  away,  which  leaves  the  conjugal  bond  intact,  and  permits 
future  reconciliation,  is  well  described  by  St.  Paul,  I  Cor.,  VII,  11,  «  And  if  she 
depart,  that  she  remain  unmarried,  or  be  reconciled  with  her  husband  ». 

a.  On  p.  338,  he  had  already  made  the  same  observation  with  regard  to  V,  32  : 
« If,  then,  Jesus  in  condemning  the  man  who  leaves  his  wife,  makes  an  exception 
in  the  case  where  adultery  is  the  reason  for  separation,  nothing  more  can  be 
deduced  from  the  text,  than  that  the  condemnation  does  not  include  that  case  ». 

3.  St.  Augustine  speaks  in  like  terms  (De  conjugiis  aduUerinis,  I,  c.  7  ;  Migne, 
XL,  col.  496  s.),  «  Cum  dicimus  :  quicunque  mulierem  praeter  causam  fornica- 
tlonis  a  viro  dimissam  duxerit,  moechatur,  de  uno  quidem  ipsorum  dicimus,  nee 
tdmen  ideo  moechari  negamus  eum  qui  eam  duxerit  quam  propter  causam 
tornicationis  maritus  dimiserit  ». 

4.  Die  christliche  EJte,  Schaffhausen,  1850.  Cf.  Ott,  o.  c,  p.  267  ss.,  and 
p,  389  ss.,  who  adopts  this  interpretation  of  Mt.,  V,  33,  and  makes  it  still 
more  evident. 

5.  Ott,  o.  c,  p.  369  and  390  ss.  brings  some  suggestive  examples  of  it. 


THE  INDISSOLUBILITY  OF  MARRIAGE  353 

phrase, «  si  quis  praeter  causam  fornicationis  dimiserit  uxorem  moechatur>, 
is  susceptible  of  a  double  acceptation  :  viz.,  he  who  puts  away  his  wife, 
except  for  fornication,  commits  adultery,  and  :  he  who  puts  away  his  wife, 
even  for  fornication,  commits  adultery.  In  the  second  passage,  Mt.,XIX,  9, 
the  negative  m  (and  ou)  can  also  signify,  according  to  the  context  and 
circumstances,  not  only  ;  and  in  fact,  St,  Matthew  himself  employs  it  in 
this  sense,  IX,  10;  IX,  20 ;  XII,  7  ;  also  Osee,  VI,  6.  But,  as  we  have  shown 
above,  the  context  and  circumstances  here  call  for  this  rendering  (*). 

All  these  considerations  sufficiently  show  that  St.  Matthew  in  no  way 
weakens  the  thesis  of  the  absolute  indissolubility  of  marriage  ratum  et  con- 
summatum  (*).  The  three  interpretations  which  we  have  proposed,  on  the 
contrary,  strengthen  it,  or  at  least  respect  it.  The  traditional  explanation, 
given  under  a/  is  not  without  a  certain  difficulty, which  is  avoided  by  adopt- 
ing that  given  under  y/.  For,  the  first  solution  gives  to  the  term  dimittere 
a  sense  different  from  that  which  it  had  at  the  time  of  Our  Lord,  specially 
among  the  Jews  :  that  is  to  say,  the  sense  of  sending  away  (the  wife)  from 
the  house,  while  keeping  intact  the  marriage  bond,  a  sense  which  the 
parallel  passages  in  Luke  and  Mark  have  not  (-). 

B.  Doctrinal  documents  of  the  Church  and  the  evidences  of  the 
Fathers  and  Doctors.  ^nn 

\.  Certain  decisions  of  Bishops  and  of  episcopal  tribunals  are  met  with   s.from  the 
contrary  to  the  law  of  indissolubility  (*).  fj^'^ch^  °h  • 

Moreover,  some  ecclesiastical  documents,  such  as  particular  conciliar 


1.  Yet  another  explanation  is  given  by  Ott,  o.  c,  p  296  ss.,  for  Matth.,  XIX, 
9.  According  to  him,  the  Hebrew  word  corresponding  to  the  Greek  |jf|  is  Vjji, 
which,  when  used  with  the  infinitive,  may  signify,  according  to  Gesenius, 
Hebr.  u.  Aram.  Handworterbuch,  <  es  kann  nicht  sein,  es  darf  nicht »  ;  but  one 
can  very  well  here  supply  the  infinitive  (dimittere),  omitted  for  conciseness,  so 
that  the  sense  would  be  :  whosoever  shall  put  away  his  wife  —  which  is  not 
permitted  for  fornication  —  and  shall  marry  another,  committeth  adultery. 

2.  Even  among  Protestants  there  are  found  writers,  such  as  Zahn,  Watkins 
and  B.  Weiss,  already  mentioned,  who  share  on  this  pomt  the  Catholic  opinion. 
See  the  authors  quoted  in  Ott,  o.c,  and  cf.  Der  Katltolik,  XXXIV,  p.  310  s.  *Die 
Bergpredigt  und  die  Unauflosiichkcit  dsf  Ehe  ».Cf.  also  Harnack,  D/e  Sprtiche  und 
Rcden  Jcsu,  1907,  p.  42,  s.,  and  compare  with  p.  loi. 

3.  Above, at  the  end  of  no  153,  our  explanation  indicates  the  interpretation  pro- 
posed under  y/> 

4.  We  are  the  first  to  acknowledge  that  the  bishops  who  yielded  to  Lothaire, 
Philip  Augustus  and  Henry  VIII,  failed  in  their  duty  and  went  against  the  tradi- 
tional teaching  of  the  Church,  The  same  was  the  case  in  the  matter  of  the 
divorce  of  Napoleon. 

S3 


354  THE  INDISSOLUBILITY   OF  MARRIAGE 

decrees  (*),  which  do  not  detract  at  all  from  the  force  of  the  unanimous  and 
traditional  teaching ;  papal  decrees  of  a  disciplinary  nature  or,  at  least,  not 
involving  the  question  of  infallibility  (*),  seem  here  and  there  to  contradict 


1.  It  must  be  admitted  that  canons  5  and  9  of  the  Council  of  Verberie  (Verm^ 
riensej  752,  and  canons  6,  13  and  16  of  the  Council  of  Compiegne  (Compediense) 
757,  give  decisions  incompatible  with  the  strict  teaching.Thus,  in  particular,  they 
grant  dissolution  of  the  conjugal  bond  in  case  of  subsequent  illegitimate 
affinity  ;  see  above  no  139.  Cf.  Hardouin,  o.  c,  III,  col.  1989  ss.  and  2003  ss.  ; 
Concilia  Galliae,  ed.  Sirmond,  1639,  II,  p.  i  ss.  and  41 ;  HefeleLeclercq,  o.c, 
III*,  p.  917  ss.  and  940  ss.  These  canons  appear  to  have  been  issued  under  the 
joint  influence  of  the  lay  Princes  who  assisted  at  these  synods,  and  of  the  pre- 
vailing customs  ;  and  they  were  not  approved  as  a  whole  by  the  Bishops  present- 
Cf.  Fahrnek,  o.  c,  p.  74.  s.;  Villien,  Divorce,  I.e.,  col.  1464  ss.;  The  Cath.  Ency- 
clop.,  Y°  Divorce  V.  p.  57  s.  See  also  what  we  shall  have  to  say  below  presently. 
Many  of  the  contemporary  penitentials  favoured  this  laxity  ;  Fahrner,  ibid., 
p.  77  s. ;  Villien,  Divorce,  col.  1467  s. 

2.  The  case  referred  to  is  that  of  Celestine  III  (1191-1198),  who,  Comp.  II,  2, 

III,  20,  permitted  the  dissolution  of  marriage  ratum  et  consummatum  when  the 
husband,  having  become  an  apostate  through  hatred  of  religion,  deserted  his 
wife,  and  unduly  extended  the  privilege  of  the  Apostle  to  such  a  case. 
Innocent  III  (1198-1316),  in  c.  7,  X,  IV,  19,  reformed  this  judgment,  shov.'ing 
clearly  by  his  words  that  it  was  the  decision  of  Celestine  III  that  he  had  in  mind  : 
«  licet  quidam  praedecessor  noster  sensisse  alitcr  videatur  ».  Cf.  supra,  no  193  ; 
also  the  Realencykl.,  under  Scheidungsrecht,  t.  XXI,  p.  861,  where  the  fact  in 
question  furnishes  an  opportunity  for  a  senseless  objection  against  the  dogma  of 
infallibility. 

The  case  of  the  rescript  of  Gregory  II  to  Boniface  (726)  is  different.  It  is  given 
by  Hardouin,  o.  c.  III,  col  1858  s.  «  Yoii  have  asked  what  is  to  be  done  by  tJie  hus- 
band of  an  infirm  wife,  incapable  of  rendering  the  marriage  debt.  It  would  be  well 
that  he  should  remain  continent ;  but  as  that  is  given  only  to  great  souls,  let  him  who 
cannot  observe  continence  rather  marry,  but  let  him  not  cease  to  support  her  who  is 
separated  from  him  by  tnfirmity  and  not  for  any  hateful  fault  ».  There  is  no  reason 
why  we  should  say  at  once,  with  Gratian,  in  his  dictum  on  c.  18,  C. XXXII, qu.  7, 
that  <  these  words  of  Gregory  are  quite  contrary  to  the  holy  canons,  and  even 
to  the  evangelic  and  apostolic  teaching  ».  On  the  contrary,  we  may  main- 
tain with  MoY,  o.  c,  309  ss.;  SaoMiiLLER,  Tub.  Quartalschr.,  1905,  p.  84  s., 
and  1911,  p.  93.;    The  Cath.  Encyclop.,   Vo  Divorce,  V,  p.  59;   Wernz,  o.  c, 

IV,  p.  499,  that  the  marriage  in  question  is  declared  dissolved  on  the  ground 
of  antecedent  impotency;  for  it  was  the  custom  of  the  Roman  Church  not 
to  dissolve  marriage  for  this  reason,  but  to  impose  fraternal  cohabitation. 
Gregory  would  be  unwilling  to  apply  this  severe  discipline  to  the  Germans, 
because  the  practice  was  suited  only  to  those  who  were  strong  in  virtue.  Or, 
again,  we  may  say  with  Fahrner,  o.  c,  I,  p.  63  s.;  Freisen,  o.  c,  p.  3J1  s.,  and 
ScHERER,  o.  c  ,  p,  267,  note  10,  that  there  is  question  of  an  unconsummated 


THE  INDISSOLUBILITY   OF  MARRIAGE  355 

the  doctrine  that  we  have  laid  down.  We  admit  this.  But,  in  the  first  place, 
they  prove  nothing  against  the  truth  of  this  teaching  ;  and  secondly,  the 
documents  in  which  the  divergence  is  real  and  not  merely  apparent,  are  so 
few  that  they  are  quite  overwhelmed  by  the  weight  of  contrary  evidence. 

The  number  alleged  is,  indeed,  great,  but  most  of  them  are  either  ot 
doubtful  authenticity  ('),  or  are  capable  of  being  interpreted  in  an 
orthodox  sense  (*),  or  they  lay  down  rules  of  conduct  which  leave  the 
question  of  principle  untouched,  and  occupy  themselves  only  with  its  prac- 
tical application,  according  to  what  we  have  said  in  n°  197,  under  A  ('). 

We  may  add  that  several  decisions  of  the  Holy  See  relating  to  matrimo- 
nial cases  seem  at  first  sight  to  contradict  the  traditional  teaching,  but  are 
nevertheless  in  conformity  with  it,  and  concern  unconsummated  marriages. 


marriage  to  be  dissolved;  or  there  may  be  admitted  with Esmein.o.c., p. 59  s.and 
75  (and,  apparently,  S&hving, Die  Wirkungen,  p. 19,  in  note,  and  Wlt,'Ll^E,^, Divorce, 
I.e.,  col.  1466  s.),  that  Gregory  recommends  some  toleration  &n^  practical  adjust- 
ment with  the  severe  doctrine  of  absolute  indissolubility,  which  he  elsewhere  in- 
culcates {Capitulate,  c.6,  in  Hardouin,  o.c.,III,co1. 1862), but  which  he  thought  he 
could  not  prudently  impose  in  the  present  instance.  We  have  made  a  like  obser- 
vation above  in  connection  with  certain  canons  of  councils. In  the  case  of  Gregory 
there  was  the  greater  need  to  be  tolerant  and  indulgent,  and  to  avoid  anything 
like  a  shock  to  the  good  faith  of  the  people,  as  he  was  dealing  with  the  recently 
converted  Germans,  whose  customs  so  readily  permitted  divorce  on  the  part  of 
the  husband.  See  also  Boudinhon,  in  the  R.  cl.  fr.,  1909,  t.  LVIII,  p.  470  ss. 

1.  E.  g.,  the  second  Synod  attributed  to  St.  Patrick.  Cf.  Hefble-Leclercq, 
o.  c,  II«,  p.  888ss. 

2.  Thus,  among  others,  the  second  canon  of  the  Synod  of  Vannes  {Venetica  in 
Brittany)  4§5,  declares  that  communion  must  be  refused  to  «  those  who,  having 
deserted  their  wives....  except  for  fornication,  marry  others  without  proof  ol 
adultery  ».  This  decree  might  be  understood,  as  by  Hefele-Dularc,  o.  c.  III, 
p.i94,in  the  sense  that  it  does  not  absolve  from  all  blame  those  who  marry  again, 
after  the  wife's  infidelity  has  been  proved,  but  that  they  must,  nevertheless,  be 
dealt  with  more  gently  than  the  others,  as  the  Fathers  of  the  Council  of  Elvira 
had  already  declared. 

We  meet  also  with  decrees  that  authorise  the  repudiation  of  an  adulterous 
wife  and  forbid  her  ever  to  marry  again, while  they  permit  the  re-marriage  of  the 
innocent  party.  Once  more,  they  have  a  meaning  that  squares  with  the  true 
teaching,  and  may  be  understood  as  inflicting  a  penalty  upon  the  guilty  and 
sparing  the  innocent  j  i.e.,  the  aduUerous  wife  is  forbidden  to  marry  again, 
at  any  time  whatever,  while  the  husband  is  left  free  to  do  so,  when  no  obstacle 
bars  the  way,  and,  in  particular  after  the  death  of  his  wife.  Consult  MoY,  o.  c,  p. 
489,  who  adduces  several  parallel  passages  in  support  of  this  view. 

3.  In  this  way  also  Bockexhoff,  o.  c,  p.  47s,  explains  the  canons  of  the  Coun- 
cils of  Verberie  and  Compiegne,  of  which  we  have  just  spoken  above. 


356  THE  INDISSOLUBILITY  OF  MARRIAGE 

or  involve  only  a  declaration  of  nullity  and  not  a  dissolution  of  the  bond. 
201.        ^^^^  above,  n"  197). 
5.  from  the       2.  The  difficulty  offered  by  certain  passages  in  the  Fathers  and  ecclcsias- 

writings  of  fical  writers  is  to  be  solved  in  a  similar  way.  The  ancient  writings  are 
the  Fathers.  ... 

searched  for  objections  against  the  Catholic  teaching,  and  some  Catholic 

writers  seem  to  lend  themselves  only  too  readily  to  the  work  of  our  op- 
ponents. Passages  are  alleged  against  us  from  Hermas  (*),  Tertullian  (*), 
Lactantius  (-),  St.  Hilary  (*)  St.  Basil  (»),  St.  Epiphanius  («), 
St.  Asterius  of  Amasea  ('),  St.  Cyril  of  Alexandria  (*),  Theodoretus  of 
Cyr  (^),  and  Pseudo-Ambrose  (*").  But  yet  once  more  in  all  this  cloud  of 
witnesses,  it  is  hard  to  find  one  who  is  clearly  and  incontestably  in  favour 
of  dissolubility  ("),  while  innumerable   passages  support  the  impugned 


1.  Mandatum  IV,  cap.  I.  Cf.  Funck,  Patrcs  Apostelici,  p.  391  ss.  See  Moy,  p. 
II  ss. 

2.  Adversus  Marcionem,  1.  IV,  cap.  34,  Ed.  (Ehler,  1854. 

3.  Instit.  divin.,  VI,  33,  Migne,  VI,  col.  730. 

4.  Comment,  in  Mt.,  c.  IV,  n°  22.]—  5.  Hilarii  Opera,  Ed.  Maurini,  Paris,  1693, 
col.  637. 

5.  Epistola  ad  Amphilochium,  188  (the  first  among  the  canonical),  cap.  9,  Migne, 
XXXII,  col.  678. 

6.  Adversus  haeres6S,\.ll,\.ovn.  I,  Haer.59  (39),  c.  4,  Migne,  XLI,  col.  1035- 
1026. 

7.  Homilia  in  Matth.,  see  no  198. 

8.  Fragment  ol  Commentarius  in  Matth.,  in  cap.  V,  31,  and  De  Adoratione  et 
cultu  inspiritu  etveritate,  1.  VIII,  in  Migne,  respectively  t.  LXXII,  col.  380,  and 
LXVIII,  col.  584. 

9.  Graecarum  affectionum  curatio,  Sermo  IX,  Migne,  LXXXIII,  col.  1053. 

10.  Comment,  in  I.  Cor.,  VII,  Migne,  XVIII,  col.  318.  See  Bardenhewer,  o.  c, 
p.  378  and  384,  who  remarks  that  the  work  is  that  of  an  uncertain  author,  who 
probably  wrote  at  Rome  between  the  years  370  and  375  ;  others  however  regard 
him  as  a  writer  of  the  School  of  Antioch.  See  Ott,  o  c,  p.  98. 

IX.  As  regards  the  evidence  of  Hermas,  Lactantius,  St.  Asterius  and  St.  Hilary, 
we  refer  the  reader  to  the  texts  quoted  ;  an  attentive  perusal  of  them  will  show 
the  justice  of  the  claim  that  they  are  in  accord  with  the  common  teaching. 
Freisen,  o.  c,  p. 770,  is  too  free  in  calling  in  question  the  opinion  of  Hermas  (as  it 
he  had  not  aimed  at  the  case  of  adultery),  of  which  Geffcken  himself  says,  o.  c, 
p.  19,  :  «  klarer  als  Hermas  es  hier  thut,  kann  man  sich  wohlkaum  ausdriick- 
en  ».  It  may,  however,  be  objected  that  Hermas  seems  to  say  that  re-marriage 
is  only  forbidden  to  separated  parties,  in  order  that  the  guilty  party  may  have 
time  to  come  to  a  better  mind  ;  thence  not  a  few,  as  Geffcken,  1.  c,  and  also 
Fahrner,  o.  c,  p.  18,  share  the  opinion  that  Hermas  permits  re-marriage  in 
c?.sc  of  there  being  no  longer  any  hope  of  coming  to  a  better  mind  ;  against 
whom  rightly  argues  Ott,  o.  c,  p.  10  s.  There  are  also  writers,  like  Esmein, 
1.  c,  who  attack  the  words  of  St.  Hilary  ;  we  would  remind  them  of  the  note  of 


THE  INDISSOLUBILITY  OF  MARRIAGE  357 

doctrine.  Among  all  the  dogmas  of  the  Church  none,  we  may  say,  has 
been  defended  with  greater  uniformity  and  consistency  than  the  principle 


the  Maurini  on  the  passage  in  question  :  «  Those  who  would  deduce  from 
this  passage  that  St.  Hilary  permits  not  only  the  repudiation  of  a  wife  guilty 
of  adultery,  but  also  the  taking  of  another  wife,  make  nim  say  what  he  neither 
says  nor  thinks,  for  he  does  but  free  the  husband  from  the  company  of  his 
adulterous  wife  ». 

Concerning  the  opinion  of  Tertullian,  many  hold  that  it  is  contrary  to  the  law 
of  indissolubility,  or  at  least  doubtful  :  as  Esmein,  o.  c,  II,  p.  49  ;  Quinquet  de 
MoNjouR,  o.  c,  p.  12  ;  Dumas,  o.  c,  p.  23 ;  Dessaules,  o.  c,  p.  ao2  ;  Pothibr,  o. 
c,  n  489  ;  TuRMEL,  Hist,  de  la  theologie  positive,  Paris,  I,  p.  157  s.  and  349  ; 
as  also  Ott,  o.  c,  p.  22-29  (see  also  Vandervelde,  Annates  par lement.  Beiges, 
1904-1905,  p.  108).  In  truth  the  words  of  Tertullian  are  somewhat  obscure  ;  but 
on  a  close  examination  they  will  be  found  to  be  in  accord  with  the  strict  teaching. 
The  object  of  the  passage  in  which  we  are  interested  is  to  show  that  there  is  no 
contradiction  between  the  teaching  of  Christ  and  that  of  Moses,  with  relation  to 
repudiation  and  divorce.  Tertullian  declares  that  on  the  one  hand  Moses  did  not 
grant  divorce  absolutely  and  without  limitation,  and  that  on  the  other  hand 
Christ  did  not  absolutely  forbid  it.  Our  Lord,  he  says,  <  now  prohibited  divorce 
conditionally,  namely,  to  those  who  put  away  their  wife /or  the  purpose  of  taking 
another  »,  In  other  words,  Christ  permitted  divorce  and  separation  on  condition 
that  the  parties  remain  without  marrying  again ;  and  Tertullian  then  concludes  : 
«lf  He  conditionally  prohibited  the  repudiation  of  the  wife, He  did  not  prohibit  it 
entirely  ;  He  permitted  it  where  the  reason  for  which  it  was  prohibited  did  not 
exist*, i.e., He  permitted  divorce  where  it  is  not  intended  to  marry  again.  Tertul- 
lian goes  on  to  insist  on  the  restriction  put  on  the  permitting  of  divorce,  that  is  to 
say,  on  the  absence  of  re-marriage :  «  he  who  shall  put  away  his  wife,  He  (Christ) 
says,  and  shall  take  another,  is  guilty  of  adultery,  and  he  who  marries  her  that 
is  put  away  by  her  husband,  is  equally  an  adulterer,  that  is,  if  he  marries  a 
woman  put  away  by  her  husband  contrary  to  law,  I  mean  with  the  intention  of 
taking  another  »,  fqui  dimiserit,  inquit  (Christus),  uxorem  et  aliam  duxerit, 
adulterium  commisit,  et  qui  a  marito  dimissam  duxerit,  aeque  adulter  est,  ex 
eadem  utiquc  causa  dimissam  qua  non  licet  dimitti,  ut  alia  ducatur  ;  illicite 
enim  dimissam  pro  indimissa  ducens  adulter  est;manet  enim  matrimonium,quod 
non  rite  diremptum  est ;  manente  matrimonio,  nubere  adulterium  est). 

It  would  indeed  have  been  surprising  if  the  rigorist  Tertullian  had  shown  laxity 
in  this  matter,  the  more  so,  as  at  the  time  of  writing  his  Adversus  Marcionem 
(207-208)  he  was  already  inclined  to  Montanism.  Moreover,  in  his  book  De  Pa- 
tientia,  written  a  little  before  (200-206),  he  plainly  supports  the  law  of  indissolu- 
bility. 

On  the  other  hand, we  must  recognise  the  fact  that  many  Fathers  and  Eastern 
ecclesiastical  writers,  notably  St  Basil,  St.  EpipJianius,  Theodoret,  Cyril  of 
Alexandria,  St.  Astcrius  and  Ambrosiaster  (if  the  last  named  can  be  counted 
among  Easterns),  in  view  of  the  customs  of  their  time,  which  were  very  indul- 


358  THE  INDISSOLUBILITY  OF  MARRIAGE 

of  the  indissolubility  of  the  marriage  bond,  notwithstanding  its  severity 
and  the  relative  ambiguity  of  the  Gospel  text. 

Note.  In  the  whole  of  this  article  we  have  confined  ourselves 
strictly  to  the  indissolubility  of  marriage  with  regard  to  the  conjugal 
bond ;  but  above,  in  n°^  132  s.,  we  have  determined  the  limits  and 
lawfulness  of  simple  separation,  the  bond  itself  remaining  intact. 

Corollary.  From  all  that  has  gone  before  it  follows,  as  a  conse- 
quence, that  only  marriage  ratttm  et  consummatum  is,  under  all 
conditions,  absolutely  indissoluble  ;  to  it  alone,  as  Alexander  III 
says,  c.  7,  X,  III,  32,  are  the  words  of  Our  Lord  fully  applicable  : 
it  is  not  lawful  for  the  husband  to  put  away  his  wife.  Without 
doubt  legitimate  marriage  (whether  consummated  or  not)  is  not 
dissoluble  so  long  as  both  the  parties  remain  unbaptized  ;  hui  this  \s 
not  due  to  the  inherent  stability  of  such  bond,  nor,  strictly 
speaking,  to  the  want  of  the  requisite  power  on  the  part  of  the 
Church.  The  reason  of  it  is  that  the  unbaptized  are  not  subjects 
of  the  Church,  and  consequently  their  marriages  do  not  fall 
within  its  purview.  This  is  why  the  Church  can  do  nothing  in  the 
matter.  The  State  also  is  unable  to  do  anything,  since  the  power 
of  dissolving  the  marriage  bond  has  not  been  delegated  to  it.  In  a 
word,  such  a  bond  has  not  an  absolute  indissolubility,  but  only 
one  that  is  relative  to  the  state  of  infidelity  of  the  two  parties. 


gent  towards  husbands  whose  wives  were  guilty  of  adultery,  inculcate  much 
less  strongly  the  law  of  strict  indissolubility,  and  even  at  times,  seem  opposed 
to  it.  We  doubt,  however,  if  any  one  of  them,  apart  from.  Ambrosiaster,  openly 
declares,  as  a  point  of  orthodox  doctrine,  tbat  marriage  may  be  dissolved  quoad 
vinculum  on  account  of  adultery.  In  particular,  as  concerns  St  Basil  and  St.  Epi- 
phanius,  some  Catbolic  writers,  and  among  them  Fahrner,  o.  c,  I,  p.  31  s.  ; 
ScHERER,o.  c,  p.  543  s. ;  Freisen,  o.  c,  p.  77a ;  TuRMEL.o.  c,  I ;  p.  157,  and  Phi- 
lippe in  the  Canon.  Contemp.,  1902,  p.  307,  go  too  far,  and  do  not  give  sufficient 
attention  to  the  explanations  offered  by  other  writers,  which  at  least  exempt 
the  texts  in  question  from  the  charge  of  being  in  evident  opposition  to  the  Ca- 
tholic teaching.  See,  e,  g.,  Pbrrone,  o.  c,  III,  p.  263  ss.  and  p.  278  ss.  ;  Amort, 
Demonstratio  critica  religionis  catholicae,  P.  I,  qu.  15;  Vacant-Mangenot,  Diction- 
naire,  under  Adultlre,  p.  481  s  ;  Poirtalie  and  Condamin,  Bulletin  de  Littcrature 
religicuse  (Toulouse),  1900,  p.  16 ;  Denner,  o.  c,  p.  47-56  and  64-68,  and  especially 
Ott,  o.  c,  pp.  54-61  and  64-67. 


THE  INDISSOLUBILITY  OF  MARRIAGE  359 

Scholion  I.  The  indissolubility  of  marriage  before  the  schis- 
matic Eastern  Church  and  before  the  Protestant  Church. 

202a. 

A.  The  Oriental  Schismatics  (i)  have  generally  adopted  the  causes  of  Discipline  of 
divorce  admitted  by  Justinian,   in  the  Novella  117  (see  n°  203a).  These       ^^  ^„^ 
causes  are  divided  into  two  categories  :  the  first  affording  ground  for  divorce    Protestant 
cum  damno,  i.  e.,  with  a  penalty  against  the  guilty  party  ;  and  the  second, 
permitting  divorce  bona  gratia,  i.  e.,  without  the  addition  of  a  penalty. 

l.The  following  are  the  causes  of  divorce  cum  damno  :  treason  against  the 
fatherland  (Hochverrath),  attempt  on  the  life  of  the  partner,  adultery  and 
partial  infidelities  giving  rise  to  suspicion,  premeditated  abortion,  the 
Casus  Apostoli,  and  spiritual  relationship  supervening  after  the  marriage 
on  the  ground  of  sponsorship. 

2.  The  causes  of  divorce  bona  gratia  are  :  impotency  anterior  to  the 
marriage  and  proved  by  an  experience  of  three  years,  imprisonment  of 
the  partner,  his  secret  flight,  servitude,  insanity,  or  complete  imbecility, 
leprosy,  religious  profession,  the  husband's  elevation  to  the  episcopacy. 

B.  As  regards  protestants  (*)  :  most  of  them  (')  admit  as  legitimate. 

I.  Cf.  Zhishman,  o.  c,  p.,  729-783  ;  Vering,  o.  c,  p.  941  s.;  Watkins,  o.  c,  p. 
347-362.  As  regards  the  United  Greeks  :  since  the  doctrine  of  the  indissolubility 
of  marriage  ratum  et  consummatum  is  an  article  of  faith,  they  must  necessarily 
admit  it  equally  with  Roman  Catholics.  See  above,  n°  197  ;  Vering,  o.  c,  p. 943 ; 
SuARN,  Praxis  missionarii  in  Orients  servata,  Parisiis,  1911,  no  163. 

3.  Cf. RoEDENBECK,  o.  c,  p.  1X3  s.  ;  Vering,  o.  c,  p.  943  s.  ;Ott,  o.c.,p.  157  ss 
3.  What  we  have  said  has  special  reference  to  German  and  Swiss  Protestants. 

In  the  Anglican  church  the  dissolution  of  marriage  by  divorce  a  vinculo  has 
not  been  expressly,  and,  so  to  speak,  officially  admitted.  Even  under  the  Act  of 
1857,  which  permits  civil  divorce  on  the  ground  of  adultery,  according  to 
the  resolutions  passed  in  the  Lambeth  Conference  of  1888  (Geary,  o.  c,  p. 
579  ss.),  and  of  1908  (Wilkins,  o.  c,  p.  164  ss.),  the  right  of  the  guilty 
party  to  marry  again,  after  a  civil  divorce  has  been  obtained,  is  not  re- 
cognised, since  such  a  marriage  is  regarded  as  contrary  to  the  divine  law  ; 
and,  if  the  innocent  party  is  not  strictly  forbidden  to  marry  again,  and  the  reli- 
gious solemnization  of  such  a  marriage  is  not  rigorously  refused,  such  a  refusal 
is  nevertheless  recommended.  Cf.  also  Watkins,  o.  c,  p.  426-430,  and  compare 
with  Howard,  o.  c,  II,  p.  71-85,  and  103-113  ;  Gore,  o.  c,  p.  33  ss. 

Indeed,  the  Reformation  of  ecclesiastical  laws,  issued  in  1553  and  offered  for 
ecclesiastical  sanction,  set  aside  separation  and  admitted  divorce  for  various 
causes  ;  as  a  matter  of  fact,  before  the  Act  of  1857,  divorce  a  vinculo  was 
occasionally  granted  in  particular  cases  by  means  of  a  private  parliamentary 
Mil  ;  but  the  said  reform  never  became  a  part  of  the  ecclesiastical  law,  and  the 
concessions  had  reference  only  to  particular  cases,  and  were  granted  outside  the 
provisions  of  the  law.  Cf.  Encyclop.  Britannica,  t.  VIII,  p.  338.  s. 

Ft  r  the  attitude    of  the  various  Protestant  churches  in  the  United  States 


360  THB  INDISSOLUBILITY   OF  MARRIAGE 

causes  of  divorce;  adultery, according  to  the  wrong  interpretation  of  Matth., 
XIX  ;  culpable  desertion  of  the  partner,  in  accordance  with  the  Pauline 
privilege  misunderstood  and  amplified.  Besides  these,  in  different  sects 
and  countries,  various  other  grounds  of  divorce  have  obtained  recognition, 
such  as  attempt  upon  the  partner's  life,  cruelty,  drunkenness  etc.  Some 
authors,  like  Ebeling,  o.  c,  p.  41-48,  admit  and  defend  all  these  causes  of 
divorce  indiscriminately  (*)  ;  see  also  Faurey,  o.  c,  p.  117-123  ; 
Howard,  o.  c,  II,  p.  60  ss.  Others  are  less  broad  in  their  views  ;  thus 
RoEDENBECK,  o.  c,  p.  112  s.,  maintains  that  rightfully  divorce  is  only 
permissible  in  the  case  of  adultery  and  in  the  casus  Apostoli,  understood 
in  the  Catholic  sense,  so  that,  according  to  him,  the  marriage  of  Christians 
is  susceptible  of  dissolution  only  on  the  ground  of  adultery. 

Scholion  II.  The  advantages  of  Marriage. 

iOib. 
The  thrct  ad-     We  have  explained  above,  in  section  3,  that  the  essential  and  constituent 

vantages  of  elements  of  Christian  marriage  may  be  reduced  to  three  points.  The  first 
two  concern  the  natural  part  that  marriage  plays.  They  are  the  relation 
that  it  bears  to  the  procreation  and  good  education  of  children,  and  conse- 
quently the  obligation  to  conjugal  fidelity.  The  third  point  concerns  marri- 
age as  a  sacrament ;  that  is  the  sacramental  dignity  together  with  the  indis- 
solubility of  the  marriage  bond,  which  is  sanctioned  and  established  by  the 
sacrament  in  a  way  that  is  altogether  unique. 

These  three  elements  are  called  the  advantages  0/ marriage,  in  that  they 
make  lawful  the  conjugal  union  and  act,  which  in  their  nature  involve  a 
certain  imperfection  (^). 

a/  They  make  marriage  itself  lawful :  from  the  natural  point  of  view 
this  is  effected  by  the  above  mentioned  relation  to  the  prospective  offspring, 
and  also  by  the  obligation  of  fidelity  that  flows  therefrom.  From  the  super- 
natural point  of  view,  it  is  the  result  of  the  sacramental  dignity  accruing 
to  it.  b/  The  act  or  use  of  marriage  is  justified  and  ennobled  thereby,  both 
in  consequence  of  the  end  proposed,  and  the  intention  of  the  married  par- 


of  America  with  regard  to  divorce,  their  legislation  in  this  matter,  and  their 
attempts  to  restrict  the  frequency  of  divorce,  cf.  Lichtenberger,  o.  c,  chap. 
VIII,  p.  131  ss. 

1.  Luther  himself  admitted  divorce  in  the  case  of  the  refusal  of  the  marriage 
debt,  looking  upon  such  refusal  as  equivalent  to  wilful  desertion.  Cf.  the  famous 
sermon  of  1523,  in  Bossubt,  Histoire  dcs  variations  des  eglises  proteatantes,  Paris, 
1688,  Livre  VI,  p.  299  ss. ;  Howard,  o.  c,  p.  62  s. ;   Grisar.  Luther,  II,  p.  308  ss. 

2.  «  In  conjunctione  viri  et  mulieris  rationis  jactura  accidit,  turn  quia  propter 
vehementiam  delectationis  absorbetur  ratio,  ut  non  possit  aliquid  intelligere  in 
ipsa...  ;  turn  etiam  propter  tribulationem  carnis,  quam  oportet  tales  sustinere  ex 
solicitudine  temporalium  ».  S.  Thomas,  SuppL,  qu.  49,  art.  i. 


CIVIL  DIVORCE  361 

ties,  when  keeping  in  view  either  the  procreation  of  children  or  the  fulfil- 
ment of  their  duty  of  fidelity  to  one  another  ('). 

Such  is  the  meaning  of  the  common  formula :  the  advantages  of  marriage 
are  threefold :  offspring  (or  the  good  of  the  offspring),  fidelity  and  the 
sacrament ;  the  word  offspring  signifies  the  relation  that  marriage  has  to 
procreation,  while  the  word  faith  or  fidelity  is  to  be  taken  in  the  sense  of 
obligation  to  fidelity. 

Besides  these  three,  there  are  no  other  essential  advantages  of  marriage. 
This  follows  from  the  considerations  that  have  been  developed  above.  Cf. 
BuccERONi,  in  the  Anal,  Eccles.,  1901,  p.  319  s.  St.  Thomas,  Supplem.  qu. 
49,  art,  3,  shows  which  of  these  three  fundamental  advantages  holds  the 
first  place. 


Supplement. 

CIVIL  DIVORCE. 

Paragraph  I.  HISTORICAL  NOTICE. 

I.  Divorce  in  Roman  Law  («). 

203a. 
According  to  ancient  Roman  Law,  marrtage  m  manu  could  not  be     Divorce  in 

dissolved  by  the  wife,  but  only  by  the  husband.  It  was  lawful  for  the  Roman  civil 

husband  to  annul  the  contract,  in  marriage  by  purchase  and  by  use,  on 

account  of  various  charges  against  his  wife,   especially  on  account  of 

adultery,  drunkenness,  and  witchcraft.  In  marriage  by  confarreation  also 

the  original  indissolubility  gave  place  in  turn  to  divorce,  for  the  same 

reasons,  by  means  of  diffarreatio  ("). 

The  formalities  to  be  observed  in  the  dissolution  of  a  marriage,  except 

in  the  case  of  «  diffareatio  ? ,  consisted  at  first,  but  not  under  pain  of 

nullity,  in  taking  the  opinion  and  advice  of  friends  ;  later,  under  the 


Law. 


1.  These  two  advantages,  viz.,  the  relation  to  procreation  and  the  mutual  obli- 
gation to  fidelity  may  be  regarded  as  they  are  in  habitu,  or  as  they  are  in  actuuli 
intentione.  «  Secundum  quod  sunt  in  habitu,  faciunt  matrimonium  honestum..., 
ita  etiam  secundum  quod  sunt  in  actuali  intentione,  faciunt  actum  matrimonii 
honestum  ».  As  regards  the  third  advantage,  the  sacrament,  «  non  pertinet  ad 
usum  matrimonii,  sed  ad  essentiam  ipsius...  ;  unde  facit  ipsum  matrimonium 
honestum,  non  autem  actum  ejus,  ut  per  hoc  actus  ejus  absque  peccato  redda- 
tur  ».  St.  Thomas,  Supplem.,  qu.  49,  art.  5. 

2.  For  the  ancient  customs  and  legal  provisions  of  other  nations,  cf.  Villien, 
1.  c,  Vo  Divorce,  col.  1456  s. 

3.  Cf.  Darenberg  et  Saglio,  o.  c,  II,  V"  Divortium,  p.  321  ss. 


362  CIVIL  DIVORCE 

Emperor  Augustus,  the  Julian  Law  prescribed  that  the  party  seeking 
divorce  should  have  the  support  of  seven  witnesses  ;  and  that  apparently 
was  required  for  the  validity  of  the  act ;  but  no  intervention  of  the  public 
authority  was  required  :  the  divorce  was  and  remained  an  act  of  private 
right. 

Marriage  sine  manu,  already  in  vogue  before  the  Christian  era,  was  liable 
to  dissolution  by  either  of  the  parties.  Its  dissolubility  by  degrees  so  increas- 
ed that  it  came  to  be  dissolved  not  only  by  mutual  consent,  but  even  by  the 
wish  or  mere  whim  of  one  of  the  parties.  The  law  still  required,  in  the  lat- 
ter case,  the  existence  of  a  just  cause  juridically  allowed  ;  but  even  if  accom- 
plished without  cause,  the  divorce  secured  its  effects,  and,  at  most,  was 
liable  to  certain  penalties. 

This  licence  communicated  itself  little  by  little  to  marriage  in  manu,  so 
that,  except,  perhaps,  in  the  case  of  marriage  by  confarreatio, persons  were 
divorced  as  easily  as  they  were  married,  and  the  number  of  divorces  increas- 
ed beyond  measure.  In  the  early  days  of  the  Republic,  divorced  persons 
were  the  exception  ;  but  from  the  time  of  the  Empire  the  evil  spread  in  all 
directions,  favoured  by  the  corruption  of  morals.  This  historical  fact  is  clear- 
ly established  by  documents  and  evidence  quoted  by  Cambier,  o.  c,  p.  44 
ss. ;  CovLON,  Divorce,  p.  54  ss.  ;  Glasson,  o.  c,  p.  175  ss.  ;  Lefebvre,  o. 
c.,p.  i33ss.(<). 

Later  on  the  Christian  emperors  strove,  as  far  as  circumstances  permit- 
ted, to  revise  the  laws  in  accordance  with  the  principles  of  the  Church. 

Constantine,  in  331,  restricted  the  number  of  legal  causes  for  divorce.  As 
against  the  wife,  he  admitted  adultery,  witchcraft,  and  what  was  called 
officiumconciliatricis  (huppelei) ;  as  against  the  husband,  homicide,  sorcery, 
and  the  violation  of  a  burial-place.  Anyone  who  repudiated  his  partner  for 
other  causes  was  liable  to  severe  penalties,  and  could  not  remarry.  In  later 
times,  however,  popular  feeling,  opposed  to  these  reforms,  forced  the  hands 
of  authority,  especially  of  Theodosius  II,  who  found  himself  compelled  to 
sanction  several  new  causes  of  repudiation,  and  to  withdraw  the  absolute 
prohibition  of  re-marriage.  Justinian  established  afresh  stricter  limits  (*),and 
moreover,  abrogated  even  divorce  by  mutual  consent  (^),  except  in  the  case 
of  the  religious  profession  of  both  parties  ;  but  his  successor  did  not  main- 
tain the  latter  law  (*). 


1.  Everyone  knows  the  stinging  remark  of  Seneca   regarding  the   Roman 
matrons  «  who  counted  their  years  by  the  number  of  their  husbands  ». 

2.  Fahrner,  o.  c.,  p.  28  s.;  Geffcken,  o.  c.,  p.  25  s.  ;  see  also  above  no  202a. 

3.  Novella  117,  ch.  10. 

4.  Concerning  the   fate  of  divorce  in  the  sequel,   and  the   legislation  of  the 
Emperors  of  the  East,  see  Watkins,  o,  c.,  p.  350  ss. 


CIVIL  DIVORCE  363 

II.  Divorce  in  Ancient  Germanic  Law. 

203b. 
Notwithstanding  the  purity  of  morals  of  the  ancient  Germans,  whose     Divorce  in 

praises  Tacitus  speaks,  authors  are  agreed  in  saying  that  they  practised  ^^^^ Law' 
divorce.  Among  them  the  husband  had  the  legal  right  to  repudiate  his 
wife,  practically  at  will,  on  condition  that  he  made  her  parents  certain 
compensation  ;  on  the  other  hand,  a  correlative  right  on  the  part  of  the 
wife  was  not  recognised  (').  This  latitude  allowed  to  the  husband,  and  to 
the  husband  only,  is  easily  understood  if  we  bear  in  mind  the  mental  atti- 
tude of  this  nation  with  regard  to  the  nature  of  marriage,  and  to  the  autho- 
rity of  the  husband  over  his  wife. 

From  the  V"^  century  onwards  the  Germans,  living  in  the  midst  of  Gallo- 
Roman  races,  whose  territory  they  had  invaded,  began  to  draw  up  laws 
and  codes  concerning,  at  one  time,  their  own  people  and  the  Gallo-Romans 
separately,  at  another,concerning  the  whole  population  without  distinction. 
Thus  the  Visigoths  and  the  Burgundians  had  their  Roman  law  for  their 
Roman  subjects,  along  with  their  own  Barbarian  law  (Lex  Barbara)  for 
the  Germans  only  ;  whereas  the  edict  of  Theodoric  regulated  at  the  same 
time  the  Ostrogoths  and  the  Romans  (*). 

All  these  laws,  even  the  Barbarian  laws,  clearly  bear  the  stamp  of  the 
Christian  religion  as  well  as  of  Roman  law  ;  they  take  into  account 
chiefly  the  provisions  of  the  code  of  Theodosius,  adapted  to  the  customs 
of  the  locality  and  to  Catholic  ideas.  In  particular  with  regard  to  divorce  : 

1.  The  Roman  laws,  enacted  apparently  (^)  by  the  Burgundians  and 
by  the  Visigoths  (*),  following  the  example  of  the  Christian  em- 
perors, still  permit  divorce  by  mutual  consent ;  but  as  for  divorce  by 
unilateral  option,  whether  on  the  part  of  the  husband  or  on  the  part  of  the 
wife,  they  restrict  it  practically  to  the  causes  established  by  Constantine, 
and  forbid  re-marriage  to  any  who  repudiate  their  partners  for  any  other 
reasons.  Moreover,  the  law  established  by  the  Visigoths  expressly  enacts, 
under  the  influence  of  Christian  ideas,  that  marriage  cannot  be  dissolved 
in  consequence  of  insanity  {■'). 

2.  The  Barbarian  laws  bear  still  further  traces   of  the  efforts  of  the 


1.  The  husband  might  commit  adultery,  provided  it  was  not  with  a  married 
woman,  whereas  the  adultery  of  the  wife  was  punished  by  an  ignominious  death. 

2.  ViOLLET,  Histoire,...  Livre  I,  4*  Partie,  may  be  consulted  with  profit  on  the 
subject  of  these  Roman  and  Barbarian  laws,  their  origin  and  their  connection. 

3.  Fahrnbr,  o.  c,  p.  51 ;  LONING,  o.  c,  II,  p.  6t3  s. 

4.  The  Roman  law  of  the  Visigoths  is  generally  called  the  Breviarium  Alarici, 
because  it  is  a  recapitulation  of  the  Theodosian  code,  published  by  Alaric  II  in 
the  year  506. 

5.  Freisen,  o.  c,  p.  778. 


364  CIVIL  DIVORCE 

Church  to  render  the  civil  law  more  and  more  conformable  with  the 
principle  of  indissolubility.  Divorce  by  mutual  consent,  upheld  seemingly 
in  most  of  the  codes  of  this  period,  is  replaced  in  the  law  of  the  Visigoths, 
from  the  middle  of  the  VII"^  century,  by  the  law  of  the  Church,  permitting 
separation  on  account  of  religious  profession,  the  marriage  tie  remaining 
intact. 

As  for  divorce  by  unilateral  option,  the  Barbarian  law  of  the 
Burgundians  (Loi  Gombette),  dating  from  the  end  of  the  V"'  century, 
commences,  in  accordance  with  Germanic  custom,  by  forbidding  the  wife 
to  abandon  her  husband,  and  that  under  pain  of  death  by  suffocation ;  it 
permits  the  husband  to  abandon  his  wife,  but  only  for  certain  v/ell 
defined  causes,  and  on  condition  that  compensation  be  made  to  the  injured 
party.  As  in  the  Roman  law,  these  causes  are  adultery,  witchcraft,  and 
the  violation  of  a  burial-place.  Furthermore,  a  later  enactment,  made 
under  the  increasingly  effective  influence  of  the  Church  towards 
lessening  the  number  of  divorces,  provides  that  the  husband  who  repu- 
diates his  wife  vdthout  legal  cause,  shall  be  compelled  to  quit  his  house 
and  cede  all  his  belongings  to  the  repudiated  wife  and  to  her  children. 
The  Barbarian  law  of  the  Visigoths,  in  its  original  wording,  admitted 
perhaps  a  greater  number  of  causes  for  repudiation  on  the  part  of  the 
husband  ;  but  the  wording  dating  from  the  latter  half  of  the  Vlh^ 
century  recognises  only  the  case  of  the  wife's  adultery,  and  does  not  allow 
her  to  abandon  her  husband,  unless  he  be  guilty  of  sodomy,  or  wishes  to 
expose  her  to  prostitution  ;  even  then  it  forbids  her  to  remarry  before 
the  death  of  her  husband. 

Such  are  the  Barbarian  laws  which  practically  settle  the  question  of 
divorce.  As  we  have  said,  they  are  already  impregnated  by  Christian 
ideas  ;  nevertheless  it  is  only  from  the  VII^^  or  the  VIIl^'^  century  that 
they  are  really  moulded  by  the  latter.  As  to  the  laws  of  other  Germanic 
tribes,  they  deal  little  or  not  at  all  with  divorce.  Thus  the  Prankish 
legislation,the  Salic  and  Ripuarian  laws,  do  not  mention  it  before  the  VII'^'^ 
century.  But  it  may  be  argued  from  various  indications  that  the  Franks, 
like  the  rest  of  the  Germans,  recognised  divorce,  both  by  mutual  consent 
and   by  unilateral  option,  for  determined  causes  {'). 

HI.  Civil  divorce  from  the  viii*  century  to  the  present  day. 

Before' the        '^*  ^^fore  the  French  Revolution. 

French  Revo-      An  energetic    reaction  against  divorce  took  place  during   the  rule  of 
divorce  was    ^^^  Carlovingians,  so  that  by  the  time  of  Charlemagne  this  abuse  had 

absolutely 
prohibited.        i-  See  the  provisions  of  this  ancient  Germanic  law  developed  in  Loning,  o. 

c,   II,   pp.   617-627;  Geffcken,  o,  c,   pp.  33-52  ;  Farhner,  o.  c,  pp.  48-59; 

Freisen,  o,  c,  pp.  776-781. 


CIVIL  DIVORCE 


365 


entirely  disappeared  from  legislation.  It  had  not  however,  on  that  account, 
disappeared  from  custom,especially  as  several  of  the  penitentials  of  the  VII "^ 
and  VIII''^  centuries  were  too  much  in  its  favour.  But  as  matrimonial  juris- 
diction passed  by  degrees  into  the  hands  of  ecclesiastical  judges,  customs 
were  gradually  reformed.  In  France  as  early  as  the  XI*  century,  princi- 
ples and  conduct  in  this  matter  were  in  entire  accord.  The  stages  of  this 
evolution  may  be  followed  in  the  excellent  account  given  by  Fahrner,  o. 
c,  pp.  71-120  ;  cf.  Gefcken,  o.  c,  p.  52-67. 

The  civil  laws  remained  in  agreement  with  Catholic  doctrine  down  to 
the  French  Revolution,  even  after  the  State  had  begun  to  usurp  the 
jurisdiction  over,  and  to  make  regulations  regarding  marriage,  as  we  shall 
show  in  n°  226.  Even  then  it  continued  to  safeguard  thoroughly  the  bond 
of  consummated  marriage  and  permitted  only  separation  from  bed  and 
board,  in  accordance  with  Canon  law,  excepting  dissolution  of  non-con- 
summated marriage  in  case  of  solemn  religious  profession  {*). 

B.  Before  th.e  introduction  of  the  Code  Napoleon. 

On  the  20***  of  September  1792,  under  the  aegis  of  the  revolutionary  Law  of  civil 
Republic,  the  law  of  divorce,  and  at  the  same  time  cIaaI  marriage,  (*)  troduced^in 
were  introduced  by  the  Legislative  Assembly  (3).  According  to  the  mind  of    France  in 


the  pseudo-legislators  (*),  the  power  of  divorce  was  a  consequence  of  the 

1.  The  Pauline  privilege  was  not  introduced  into  French  law  ;  Pothier,  o.  c, 
nos  500-505,  cites  an  edict  of  Parliament,  made  Jan.  3,  1758,  declaring  there 
was  no  room  for  dissolution  of  marriage  in  a  case  under  consideration,  although 
in  it  the  conditions  of  the  privilege  were  verified. 

2.  We  shall  show  later,  on  what  grounds  civil  marriage  was  instituted,  in  con- 
sequence of  the  provision  of  the  Constitution  of  1791,  tit.  II,  art.  7,  which,  after 
declaring  that  «  The  law  considers  marriage  simply  as  a  civil  contract  », 
decreed  :  «  The  legislature  will  establish,  for  all  inhabitants  without  distinction, 
the  manner  in  which  births,  marriages  and  deaths  shall  be  verified  ». 

3.  Martin,  o.  c,  pp.  49-64,  and  Cruppi,  o.  c,  ch.  2,  expose  the  artifices  resort- 
ed to  by  the  favourers  of  divorce  to  arouse  public  opinion,  and  to  persuade  the 
legislators  to  vote  for  the  law.  Their  subversive  theory  already  had  precursors, 
whose  names  are  given  by  Riberolles,  o.  c,  p.  8  s. 

4.  Objectively  speaking,  divorce  is  not  of  its  own  nature  a  logical  conse- 
quence of  the  proclamation  of  civil  marriage.  Abstracting  from  the  Sacrament,  if 
we  consider  marriage  merely  as  a  natural  and  civil  contract,  governed  solely 
by  the  civil  authority,  it  does  not  lose  its  character  of  indissolubility,  as  we 
have  seen  above  ;  but  the  idea  and  the  intention  of  the  legislators  were  other- 
wise. Nevertheless  there  is  a  certain  objective  connection  in  the  nature  of 
things.  The  very  idea  of  civil  marriage  weakened,  to  a  perceptible  degree, 
this  notion  of  indissolubility.  In  this  respect  we  may  say  with  Lemaire,  o.  c, 
p.  159  s.  :  «  Civil  marriage  was  the  cause  of  the  establishment  of  divorce  in 
France,  in  this  sense,  that  civil   marriage,  a  weak  conception,    without    the 


179%; 


366  CIVIL  DIVORCE 

establishment  of  civil  marriage ;  in  fact,  considering  marriage  as  a  purely 
civil  contract,  they  declared  it  voidable  by  nature,  like  other  contracts.  This 
is  the  opinion  explicitly  formulated  by  Leonard  Robin,  the  promoter  of  the 
law  (*),  and  clearly  expressed  in  the  very  text  of  the  decree  (^). 

In  the  midst  of  popular  distress  and  commotion,the  law  of  divorce  passed 
without  any  opposition,  and  it  was  drawn  up  in  terms  so  wide  that  they 
authorised  the  breaking  of  the  contract,  not  only  for  a  multitude  of  special 
causes  (^),  but  also  by  mutual  consent  (^),  and  even  by  the  will  of 
one  of  the  parties,  «  on  the  simple  allegation  of  incompatibility  of 
temper  or  character  »  (^).  Moreover,  art.  7  declared  :  «  For  the  future  no 
corporal  separation  can  be  granted ;  married  persons  cannot  be  disunited 
except  by  divorce  »  (*). 
and  success-  This  is  not  all ;  however  wide  the  breach  was  already,  it  was  soon 
ively  ampli-  widened  still  more,and  the  necessary  formalities  were  still  further  simplified 


power  of  resistance,  took  the  place  of  religious  marriage,  a  strong  conception, 
which  would  have  assured  victory...  The  religious  conception  of  marriage, 
solidly  enshrined  in  an  honoured  and  legal  religious  marriage,  that  is  what  was 
wanted  ;  that  is  what  we  ought  to  have  been  able  to  oppose  to  divorce  ;  that  is 
the  only  remedy  that  could  have  saved  us  from  its  institution  as  a  general  law- 
and  from  its  daily  more  rapid  acclimatisation  in  our  midst  ». 

We  may  add  to  these  words  the  remark  of  Laurent,  Avant-Projet,  t.  II,  p. 
3  :  «  I  do  not  say  that  one  cannot,  without  being  a  Catholic,  maintain  the  indis- 
solubility of  marriage  ;  nevertheless,  it  is  certain  that  the  religious  idea  plays  a 
leading  part  in  this  discussion  ».  Cf  also  Liciitenberger,  o.  c,  p.  62  s. 

1.  Cf.  Lbmairb,  o.  c,  p.  104. 

2.  Ibid.,  p.  103,  where  the  author  remarks  that  many  speakers  condemned  as 
useless  the  decree  permitting  divorce,  because,  they  said,  the  principle  was 
already  contained  in  the  very  proclamation  of  civil  marriage.  Among  others, 
Gaiidet  exclaimed  :  «  I  am  opposed  to  it  (i.  e.  to  the  declaration  of  the 
principle  of  divorce  in  the  law)  because  it  is  there  already   ». 

3.  Art.  4,  par.  i  :  «  Each  of  the  parties  can  equally  secure  pronouncement  of 
divorce  for  determined  reasons,  viz.  i.  lunacy,  insanity,  or  mania  of  one  of  the 
parties  ;  2.  sentence  to  punishment  affecting  the  person  or  honour  of  one  or 
other;  3.  crimes,  cruelty,  or  grievous  injury  of  one  against  the  other  ;  4.  noto- 
rious immorality  ;  5.  desertion  of  the  wife  by  the  husband  or  of  the  husband  by 
the  wife  for  two  years  at  least ;  7.  emigration  in  cases  provided  for  in  the  law, 
especially  by  the  decree  of  April  8th,  lygj  ».  Coulon,  Div.  et  sip.,  p.  340. 

4.  Art.  2  :  «  Divorce  takes  place  by  the  mutual  consent  of  the  parties  ». 

5.  Art.  3. 

6.  See  Coulon,  o.  c,  p.  174-179,  on  the  formalities  then  required  to  obtain  a 
divorce,  and  on  the  legal  effects  of  the  latter.  Notice  that  the  divorced  parties 
were  free  to  renew  their  marriage.  Cf.  Dumas,  o.  c,  p.  61  ss. 


CIVIL  DIVORCE  367 

by  the  decrees  of  Dec.  28,  1793  (8  Nivose,  an  II),  April  23-28,  1794,  and 
Oct.  15,  1794 (4-9 Floreal,  anil,  and 24  Vendemiaire,  an  III)  (•)• 

But  in  1795  began  a  r^flc^ww  against  the  abuses  of  divorce  (-).  On  the 
2""*  of  August  of  that  year  (15  Thermidor,  an  III),  the  last-mentioned 
decrees  were  abrogated,  and  only  the  law  of  1792  remained  provisionally  in 
force.  Even  this  was  slightly  modified  by  the  law  of  Sept.  17, 1797,  particu- 
larly with  regard  to  the  formalities  required  to  obtain  a  divorce  «  for  incom- 
patibility of  temper  »  (^).  Nevertheless  the  evil  was  only  to  some  extent 

checked  (*). 

204. 
C.  From  the  dra^ving  up  of  the  Code  Napoleon^  to  the  separa-    Sanctioned 

tion  of  Belgium  from  France  (1814-1815).  '  by  the  ^M 

Divorce,  as  well  as  civil  marriage,  was  admitted  in  the  Civil  Code,        Code, 

promulgated  March  24,  1804,  and  designated  under  the  title  of  the  Code 

Napoleon,  from  Sept.  3,  1807.  Nevertheless,  it  was  recognised,  not  as  a 

logical  consequence  of  the  idea  of  civil  marriage  (*),  but  as  a  sanction  of 


I.  CouLON,  o.  c,  p.  180  s.,  of.  text  quoted  p.  250  s.  See  also  Glasson,  o.  c, 
p.  200  s.  ;  Dumas,  o.  c,  p.  63  ss.  ;  Riberolles,  o.  c,  p.  30  ss. 

3.  According  to  Glasson,  o.  c,  p.  261,  «  In  Paris,  during  the  21  months  that 
followed  the  promulgation  of  the  law  of  1792,  the  courts  pronounced  5994  divor- 
ces. In  the  first  three  months  of  1793  the  number  of  divorces  equalled  that  of 
marriages  ».  Consult,  however,  Martin,  o.  c.,p.  157s.  This  enormous  number 
disturbed  many  people  :  «  The  law  of  divorce,  said  Mailbe,  is  a  gambling  tariff" 
rather  than  a  law.  At  the  present  moment  marriage  is  merely  a  matter  of  specu- 
lation. A  wife  is  taken  like  a  parcel  of  goods,  with  an  eye  to  the  profits  that  may 
accrue  ;  and  she  is  got  rid  of  when  she  ceases  to  be  profitable  ».  Belleville  adds  : 
«  We  must  stop  this  marketing  in  human  flesh,  which  the  abuse  of  divorce  has 
introduced  into  society.  We  must  hasten  to  remove  the  monstrous  proviso  that 
permits  incompatibility  of  temper  to  be  alleged  ».  Coulon,  o.  c,  p.  183  s.  Cf. 
CoMBiER,  o.  c.   p.  445  s ;  JOLY,  La  Crise  du  Mariagt,  1.  c,  p.  127. 

3.  Cf.  Coulon,  o.  c,  pp  182-188.  As  often  as  divorce  is  demanded  on  this 
ground,  c  the  civil  officer  shall  be  able  to  pronounce  a  divorce  only  after  six 
months  from  the  date  of  the  last  of  the  three  acts  of  non-conciliation  required  by 
articles  8,10  and  11  of  the  law  of  Sept.  28,  1793  ».  Portalis  had  demanded  in  vain 
the  abrogation  of  the  plea  of  incompatibility  of  temper,  as  Riberolles  notes, 
o.  c.,p.45s. 

4.  Glasson,  o.c,  p.  261 :  «  In  spite  of  the  reaction  of  an  III,  the  abuse  continued. 
In  the  single  month  of  Pluviose,  an  III,  there  were  (in  Paris)  223  divorces,  of 
which  205  were  demanded  by  wives  for  incompatibility  of  temper  >. 

5.  On  the  contrary  the  legislator  recognised  that  civil  marriage,  of  its  own 
nature,  required  the  perpetuity  and  indissolubility  of  the  marriage  bond.  Thus 
Savoic-Rollin,  in  his  report  made  to  the  court  in  the  session  of  27  Ventose,  an  XI, 
proclaims  that  «  the  purpose  of  marriage  is  that  it  should  be  perpetual  »,  that 


368  CIVIL  DIVORCE 

liberty  of  worship  ('),  and  principally  as  a  necessary  f^w^iy  for  escaping 
still  greater  evils  (^).  This  is  why,  as  we  shall  see  presently,  the  authors 
of  the  Code  sought  to  diminish  the  number  of  causes  for  divorce,  and  to 
increase  the  formalities  to  be  observed,  in  order  to  avoid  abuses  (^).  Still 
they  declared  the  rupture  perpetual  once  it  was  accomplished,  and  thereby 
deprived  the  divorced  parties  of  the  means  of  resuming  conjugal  relations. 
Meanwhile,  out  of  regard  for  Catholics  (*),  they  sanctioned  separation 


«  this  is  a  principle  universally  recognised  ».  Locre,  o.c,  V,  p. 317.  In  the  same 
way  Gillet,  orateur  du  tribunal,  at  the  session  of  the  Corps  Legislatif,  30 
Ventose,  an  XI,  declares  ;  «  Permanence  is  its  state,  perpetuity  its  vow,  indisso- 
lubility between  the  parties  its  natural  condition  ».  Locre,  1.  c,  p.  378.  Trbil- 
HARD  also  in  his  Expose  des  motifs  says  :  «  It  is  a  point  equally  incontestable, 
that  of  all  contracts  there  is  not  one  in  which  the  intention  and  the  vow  of 
perpetuity  on  the  part  of  the  contractors  is  more  to  be  desired  >.  Locre,  1.  c,  p. 
291. 

I.  «  The  question  of  divorce ought  to  be  so  decided  as  not  to  burden 

any  conscience,  or  to  fetter  any  liberty  >,  so  that  no  one  ought  to  have  recourse 
to  it  against  his  religion,  and  that  no  one  ought  to  be  excluded  from  it,  if  his 
religion  permits  it.  Treilhard  (Locre,  1.  c,  p.  391).  Portalis  speaks  in  the 
same  way  (Locre,  o.  c,   p.  49  and  139). 

3.  «  Divorce  itself  cannot  be  a  good  ;  it  is  the  remedy  of  an  evil  ».  These  too  are 
the  words  of  Treilhard  (Locre.  o.  c,  p.  292),  when  denouncing  the  passions  and 
the  corruption  of  morals  that  require  the  dissolubility  of  marriage,  in  cases 
where  no  other  remedy  is  available.  He  himself  recognises  that  divorce  ought 
to  be  done  away  with,  if  the  problem  were  susceptible  of  any  other  solution  J 
that  is  to  say,  if«  we  could  find  the  means  of  so  perfectly  arranging  conjugal 
unions,  of  so  strongly  inspiring  the  parties  with  the  sense  and  the  love  of  their 
respective  duties,  that  we  might  flatter  ourselves  that  they  would  not 
subsequently  withdraw  from  them,  and  that  they  would  no  longer 
compel  us  to  be  witnesses  of  those  atrocious  scenes,  those  revolting  scandals 
which  so  imperatively  require  the  separation  of  the  parties  ».  Not  seeing  any 
other  way  of  escape,  he  at  first  came  to  the  conclusion  that  either  divorce  or 
separation  is  a  necessity ;  afterwards,  seeing  the  insufficiency  of  the  latter,  he 
admitted  the  necessity  of  divorce.  See  also  what  he  says  at  the  end  of  his  Expose 
des  motifs  ,  as  well  as  the  discourse  of  Gillet,  1.  c,  p.  378. 

3.  Treilhard  (Locre,  o.  c,  p.  397)  :  «  The  formalities,  the  proofs  with  which 
divorce  will  be  surrounded,  may  prevent  abuse  :  let  us  hope  the  number  of 
divorced  persons  will  not  be  great  ». 

4.  After  attempting  to  prove  the  necessity  of  divorce,  Treilhard  continues 
in  these  terms  (Locre,  o.  c,  p.  398) :  «  The  social  pact  guarantees  to  all  French 
people  the  liberty  of  their  belief.  Tender  consciences  may  regard  the  indissolu- 
bility of  marriage  as  an  imperative  precept.  If  divorce  were  the  only  remedy 
offered  to  unhappy  spouses,  would  not  citizens  be  faced  with  the  cruel  alter- 
native, either  of  being  false  to  their  belief,  or  of  sinking  under  a  yoke  that  they 


CIVIL   DIVORCE  369 

side  by  side  with  divorce,  although  this  had  not  been  inserted  in  the  pro- 
visional text  of  the  law  ('). 

As  to  the  legal  causes  for  divorce  and  separation  : 

1 .  The  civil  Code  permitted  divorce  :  a/  For  determined  reasons,  viz.  for 
adultery  of  the  wife,  or  even  of  the  husband,  if  he  claimed  to  keep  his 
concubine  under  the  same  roof  as  his  wife  (art.  229  and  230)  ;  also  for 
excesses,  cruelty  or  grievous  injuries  (art.  231) ;  and  for  condemnation  to 
a  penalty  involving  disgrace  ('art.  232). 

b/  By  mutual  consent.  Far  from  understanding  this  consent  in  the  sense 
of  the  law  of  1792,  for  which  incompatibility  of  temper  sufficed,  or  in  the 
sense  of  an  agreement  based  on  the  mere  fancy  of  the  parties  (*),  it  exact- 
ed, on  the  contrary,  a  mutual,  lasting  expression  of  will,  so  expressed,  and 
fulfilling  so  many  conditions  and  formalities,  that  it  constituted  a  necessary 
presumption  (juris  et  de  jure)  of  the  existence  of  a  major  yet  secret 
motive  for  separation,  and  one  that  ought  to  remain  secret.  This  is 
clearly  insinuated  by  art.  223  {^). 


can  no  longer  bear  ?...  While  permitting  divorce,  the  law  leaves  separation  still 
available.  The  party  that  has  the  right  to  complain  may  formulate  either  demand 
at  choice  ;  thus  no  man's  opinion  is  shackled,  and  full  liberty  in  this  respect  is 
maintained  ».  See  also  the  words  of  Portalis  (Locre,  o.  c,  p.  133  and  139). 

I.  CouLON,  o.  c,  p.  191  and  192  :  c  The  system  adopted  by  the  commission 
(charged  with  the  preparation  of  the  projected  law)  did  not  re-establish  separa- 
tion. The  discussion  ended  in  a  compromise  between  the  two  opinions  »,  of 
which  one  was  in  favour  only  of  divorce,  and  the  other  in  favour  only  of  separa- 
tion. 

3.  Already  in  1796,  before  the  Legislative  Assembly,  Regnault  had  severely 
censured  the  laxity  of  the  law  of  1792  :  «  What  is  there  more  immoral  than 
to  permit  a  man  to  change  his  wife  as  he  changes  his  coat,  and  a  wife  to  change 
her  husband  as  she  changes  her  hat  ?  Is  not  this  an  attack  on  the  dignity  of 
marriage  ?  Does  not  this  make  marriage  the  mere  plaything  of  caprice  and 
levity ,and  change  it  into  a  successive  concubinage  ?  » — Treilhard  (Locre,  o.c.,p. 
29  s.)  equally  condemns  divorce  by  mere  mutual  consent,  and  avows  that,though 
the  will  of  the  contracting  parties  sufficed  to  contract  the  marriage,  it  does  not 
suffice  to  dissolve  it,  as  if  there  were  question  of  a  contract  in  which  only  the 
parties  themselves  are  interested  :  «  Marriage  is  not  solely  in  the  interest  of  the 
persons  who  contract  it.  It  forms  a  bond  between  two  families,  and  it  creates  in 
society  a  new  family,  that  may  itself  become  the  parent-stock  of  many  other 
families.  The  citizen  who  marries  becomes  a  husband  ;  he  will  become  a  father. 
It  is  thus  that  new  relationships  are  established  which  the  parties  are  not  free  to 
break  at  will  ». 

3.  «  The  mutual  and  persevering  consent  of  the  parties,  expressed  in  the 
manner  prescribed  by  the  law,  under  the  conditions  and  after  the  proofs  that  it 

*4 


37°  CIVIL   DIVORCE 

cj  In  the  case  of  art.  310  :  «  When  the  separation,  pronounced  for  any 
other  reason  except  the  adultery  of  the  wife,  has  lasted  more  than  three 
months,  the  party  that  was  originally  the  defendant  may  claim  a  divorce 
from  the  court,  which  will  grant  it,  if  the  original  plaintiff,  present  or  duly 
summoned,  does  not  consent  to  put  an  end  to  the  separation  »  (*). 

2.  Separation,  by  virtue  of  art.  306,  might  be  obtained  «  in  cases  in 
which  divorce /or  determined  causes  is  permitted  »,  consequently  only  for 
the  causes  described  under  letter  a/,  mutual  consent  being  excluded. 

D.  After  the  separation  of  Belgium  from  France. 

1 .  In  France. 
iOS. 

Abrogated        Shortly  after  the  happy  re-establishment  of  the  monarchy,  i.  e.  in  the 

in  France  in  year  1816,  the  law  of  divorce  was  abrogated  by  an  almost  unanimous  vote, 
1816,  divorce  ^  t>  ^ 

was  reintro-  and  its  abrogation  proclaimed  on  the  8**^  of  May  (*).  This  state  of  things 

ducedin1884.  remained  till  1884,  in  spite  of  the  repeated  efforts  of  the  advocates  of  divor- 

ce.Several  times  they  succeeded  in  getting  the  Chambers  to  adopt  a  project 

favouring  their  views,  but  each  time  the  Senate  rejected  it.  See  Coulon,  o. 

c,  p.  229  ss. 

But  in  1884,  thanks  mainly  to  Naquet,  divorce  was  legally  sanctioned 

a7iew  by  the  law  of  the  27'*^  of  July,  and  afterwards  slightly  modified  by 

thatof  the  20''»  of  April  1886.  See  Coulon,  o.c,  p.  275  ss.;  cf.  p.  235  ss.(')  ; 


determines,  will  prove  sufficiently  that  life  in  common  is  unbearable  to  them, 
and  that  there  exists  in  their  regard  a  peremptory  cause  for  divorce  ».  See  also 
the  v/OTds  oi  Treilhard  (Locre,  o.c,  300  s.),  as  well  as  those  of  Napoleon  (p. 69)  : 
a  Mutual  consent  is  not  the  cause  of  divorce,  but  a  sign  that  divorce  has  become 
necessary  ». 

1.  <  It  would  not  be  just  that  the  party  who  has  chosen  the  way  of  separation, 
as  more  conformable  with  his  or  her  belief,  should  keep  the  other  party,  whose 
belief  may  not  be  the  same,  under  a  perpetual  disability  to  contract  a  fresh 
marriage.  The  liberty,  which  the  Constitution  guarantees  to  all,  would  then  be 
violated  in  the  person  of  one  of  the  parties.  It  was  necessary  therefore  to 
authorize  the  latter,  after  a  certain  interval,  to  claim  that  the  separation  should 
be  converted  into  a  divorce,  if  the  party  who  had  caused  the  separation  to  be 
pronounced,  did  not  consent  to  put  an  end  to  it.  Thus  two  interests  equally  sacred 
have  been,  as  far  as  possible,  reconciled,  the  security  of  the  parties  on  the  one 
hand,  and  religious  liberty  on  the  other.  »  Trcilhard  (Locr6,  o.  c,  p.  298  s.). 

2.  Cf.  Laurent,  Avant-Projet,  II,  p.  7  ss. ;  Locre,  o.  c,  p.  240  ss. 

3.  The  law  of  1884  no  longer  permits  divorce  by  mutual  consent.  The  adultery 
of  the  husband,  even  without  concubinage,  becomes  an  additional  cause  of  rup- 
ture. By  virtue  of  art.  295,  the  separated  parties  are  not  prohibited,  except  in 
one  instance,  from  re-establishing  their  union.  Art.  310  is  so  modified  that,  after 
three  years  of  separation,  divorce  way  (not  must)  be  substituted  for  it,  whereas 
the  Civil  Code  declared  the  sentence  of  dissolution  absolute  at  the  demand  of 


CIVIL  DIVORCE  371 

the    original    provision    of    art.   306   concerning    separation    was    re- 
tained ('). 

Since  then,  the  abuse  of  divorce  has  increased  day  by  day  (*),  and  with  it 
the  tendency  to  widen  more  and  more  the  legal  way  to  it  (').  There  is, 
however,  nothing  astonishing  in  this,  since  both  the  jurisprudence  (*) 
and  the  lawmakers  (^)  favour  the  movement. 


the  culpable  party.  With  regard  to  the  law  of  1886  we  may  note  that,  after  the 
sentence  of  the  judge,  the  divorce  need  no  longer  be  pronounced  by  the  oflicier 
de  r^tat  civil.but  simply  inscribed  in  the  register.  Riberrolles,  o.  c.,pp.8i-ioo, 
gives  the  history  of  the  whole  question  from  the  point  of  view  of  French  legisla- 
tion, from  1816  to  1886.  Cf.  also  Planiol,  o.  c,  I,  nos  1339,  1331  and  1363  ; 
Allegre,  o.  c,  I,  p.  187  ss. ;  and  infra,  no  307. 

I.  The  Code  Napoleon  sanctioned  separation  as  taking  the  place  of  divorce  in 
the  case  of  Catholics ;  but  the  law  Naquet  considers  it  rather  as  a  step  towards 
divorce,  a  sort  of  intermediary  stage,  a  period  of  trial  more  easy  to  obtain.  In 
that  case,  it  would  be  necessary  to  interpret  art.  306  of  the  French  Code  in  the 
sense  that  separation  and  divorce  are  to  be  granted  for  reasons  of  the  same  kind, 
but  of  less  gravity  in  case  of  separation.  Similarly  art.  310  would  now 
signify,  in  view  of  the  law  of  1884,  that  the  judge  may  convert  or  not,  separation 
into  divorce,  according  as  the  causes  that  have  brought  about  the  separation, 
appear  to  him  sufficient  or  not  to  authorise  the  dissolution.  That  this  is  the 
spirit  of  the  law  Naquet,  Zarzychi,  o.  c,  pp.  19-97,  strives  by  every  means  to 
demonstrate. See  Planiol,  o.  c,  no  1299 ;  also  Annates  Parlementaires  (Beiges)  — 
Senat  (Sdance  du  15  Mars  1911),  p.  227  s. 

During  the  preparation  of  the  Code  Napoleon,  some  jurists,  like  Boulay,  pro- 
posed to  establish  an  analogous  relation  between  separation  and  divorce.  Cf. 
Zarzychi,  o.  c,  p.  15  ss. ;  Dumas,  o.  c,  p.  63  ss. 

3.  Lemaire,  o.  c,  p.  63  ss. 

3.  See  what  we  said  above,  in  no  180,  of  the  efforts  made  by  the  abettors  of 
divorce,  such  as  Naquet  and  the  brothers  Marguerite,  to  smooth  and  widen  as 
much  as  possible  the  path  to  divorce.  Coulon  also  in  his  brochure,  Le  divorce  par 
consentement  mutud,  proposes  to  extend  the  law,  but  in  a  more  moderate  way ;  he 
still  demands  the  insertion  of  certain  determined  causes,  as  well  as  divorce  by 
mutual  consent,  as  understood  in  the  Civil  Code.  Cf.  Riberolles,  o.  c,  p.  141  s. 

4.  Lemaire,  o.  c,  p.  173  ss.,  shows  that  French  jurisprudence  has  given  to 
the  allegation  of  injury  a  gradually  widened  interpretation,  so  that  a  means 
has  been  thereby  provided  for  evading  the  law  prohibiting  divorce  by  mutual 
consent.  Cf.  also  Riberolles,  o.  c,  pp.  n8-i23 ;  Loslever,  o.  c,  p.  193  s. 

5.  Quite  recently,  June  6'^  1908,  both  Chambers  adopted  the  modification 
of  art.  310  in  the  original  sense  of  the  Civil  Code  :  «  When  the  separation  has 
lasted  three  years,  the  judgment  will  be  converted  by  right  into  a  judgment  for 
divorce,  at  the  formal  request  of  one  of  the  parties  ».  They  rejected  the  restric- 
tion proposed  by  Mcline  :  «  If  the  demand  emanates  from  the  party  to  whose 
exclusive  prejudice  the  separation  was  pronounced,  or,  if  there  exist  one  or 


372  CIVIL  DIVORCE 

Belgium  had       2.  In  Belgium, 
divorce  under 
French  and      The  Code  Napoleon  was  in  force  in  our  country  up  to  the  time  when 

andstiU     Dutch  rule  introduced  a  new  legislation  for  the  Federated  Kingdom.  In  the 
retains  it.     drawing  up  of  the  new  Code,  the  deputies,  even  the  Belgians,  voted  by  a 
large  majority  (i)  for  divorce. 

After  the  separation  of  the  two  countries  and  the  recovery  of  Belgian 
independence,  the  Code  Napoleon  was  reintroduced  into  Belgium,  with  all 
its  provisions  concerning  divorce.  These  provisions,  with  the  exception  of 
certain  changes  of  very  small  importance  (*),  remained  intact  until,  quite 
recently,  the  law  of  Feb.  8'^  1906  removed  the  prohibition  inserted  in  art. 
295,by  virtue  of  which  divorced  persons  could  not  be  reconciled  nor  re-estab- 
lish conjugal  life.  Certain  modifications  had  in  the  meantime  been  introduc- 
ed by  the  law  of  Feb.  ii">  1905,  in  the  matter  of  the  formalities  to  be 
observed  ;  as  we  shall  explain  presently  (3). 

Note.  The  Hague  Conference  has  published  various  statutes  regulating 
the  application  of  the  laws  of  separation  and  divorce,  with  regard  to  marri- 
ages contracted  in  other  countries.  A  short  account  of  these  will  be  found  in 
\heArchiv.f.  kat.  Kirch.,  1906,  tom.  86,  p.  476  ss.,  and  in  Bouscholte, 
o.  c,  pp.  14-17. 

The  general  principle  is  this  :  parties  living  in  other  countries  cannot 
obtain  divorce  or  separation  except  in  the  cases  provided  for  by  the  law  of 
their  own  country,  and  by  that  of  the  country  in  which  they  reside. 

Scholion.  Laws  in  force  in  other  countries. 
206. 
Laws  in         '•  There    are   several   countries   where  the   law    does    not    permit 

force  in  other  divorce,   but  only  separation.   The  principal  of  these  are,   in  Europe  : 

Spain,  Portugal,  Italy  (*),  Poland  and  Monaco  ;  and  in  America  :  Ar- 


more  children  as  the  issue  of  the  marriage,  the  court  may  refuse  the  conver- 
sion ».  Cf.  Bbsse,  o.  c,  p.  341  s. ;  he  states  also  other  modifications  introduced 
in  favour  of  divorce,  especially  by  the  law  of  Dec.  15'h  1904,  and  July 
13th  xgoj. 

1.  <  After  a  discussion  which  was  neither  long  nor  noteworthy,  the  projected 
law  of  divorce  was  adopted  by  62  votes  against  18.  The  opponents  were  nearly  all 
Belgians ;  nevertheless,  the  majority  of  the  Belgian  deputies  voted  for  divorce  >. 
Lavrhut,  Avant-Projet,  ix,  p.  15. 

2.  Art.  391  and  308  s.  in  Servais  and  Mechelynck,  Les  Codes  1907. 

3.  See  Coll.  Brug.,  t.  XI,  pp.  318-326.  In  these  pages  we  explain  the  important 
motion  put  down  by  Alex.  Braun,  and,  on  16  March,  1911,  already  approved  of 
in  a  great  part  by  the  Belgian  Senate,  of  which  we  shall  have  to  speak  later  ; 
it  concerns  «  modification  of  the  law  of  corporal  separation  >. 

4.  Some  years  ago,  in  Italy,  the  enemies  of  the  Church  tried  to  introduce  a 
law  in  favour  of  divorce  ;  but  Leo  XIII  made  an  eloquent  protest,  in  his  Allocu- 


CIVIL  DIVORCB  373 

gentina,  Brazil,  Chile,  Mexico,  Peru,   Uruguay,   and  South  Carolina  ('). 

2.  In  other  countries  divorce  alone  exists,  and  separation  is  not  permitted, 
except  as  a  preparatory  stage,  in  view  of  divorce  (*).  This  is  the  case  in 
Switzerland,  Roumania,  Servia,  Denmark,  Norway  and  Sweden,  and  in 
the  greater  part  of  the  United  States  of  North  America  (^). 

3.  The  laws  of  still  other  countries  permit  both  divorce  and  separation. 
Among  them.those  of  France,  Belgium,  Germany  and  England  (Howard, 
o.  c,  II,  p.  107  ss.)  and  of  some  States  of  North  America  (*). 

4.  Lastly,  there  are  countries  where  the  law  differs  according  to  the 
religion  of  the  parties. Thus  in  Austria,  separation  only  is  accessible  to  Catho- 
lics, even  in  the  case  of  a  mixed  marriage  ;  whereas  non-Catholics  have 
divorce,  and  Jews  are  allowed  even  greater  latitude  than  Christians  C*).  In 
Russia  civil  marriage  does  not  exist,  and  it  is  only  the  religion  of  the 
parties  that  governs  their  marriage.  In  that  country,  therefore,  Catholics 
have  not  the  right  of  divorce ;  on  the  other  hand,  the  Orthodox  and  the 
Jews  possess  that  right. 

With  regard  to  the  clauses  and  ulterior  provisions  of  all  these  laws,  we 
may  limit  ourselves  to  a  few  remarks.  In  Germany  mutual  consent  is  not 
admitted  among  causes  for  divorce  (art.  1564), but  separation  may  always  be 
converted  into  dissolution  at  the  request  of  one  of  the  parties  (art.  1576).  In 
England  adultery  only  is  recognised  as  a  legal  cause;  and  the  adultery  of  the 
husband  must  be  qualified,  that  is  to  say,  it  must  be  accompanied  by  rape, 
incest  or  bigamy,  or  sin  against  nature,  or  cruelty,  or  desertion  of 
two  years'  duration  (to  which  desertion  is  assimilated  the  fact  of  not  obeying 
a  decree  for  the  restitution  of  the  conjugal  rights)  (*) :  this  is  intended  to 
hinder  the  multiplication  of  divorces. In  Scotland  we  come  across  a  peculiar 
custom,    not  sanctioned  by  the  law,  but,  as  it  were,    existing    on  the 


tion  of  the  i8th  of  Dec.  1901  (Coll.  Brug.,  t.  VII,  p.  169  s.),  and  an  energetic 
popular  movement  joined  its  voice  with  his  ;  so  that,  at  the  beginning  of  1904, 
this  proposition  disappeared  from  the  list  of  projected  laws.  Cf.  Etudes  religiiuses, 
1902,  tom.  XCI,  p.  340  ss.;  Castblein,  o.c,  p.  557  s.  ;  see  also  Laurent,  Avant- 
Projet,  II,  p.  3  ss.,  who  records  a  previous  similar  attempt,  dating  from  1881,  in 
the  Italian  peninsula.  See  also  the  Instructions  of  Card.  Parrochi  to  the  Italian 
Bishops  (34  Dec.  1901),  against  the  motion  of  the  law  in  AT,  R.  th.,  p.  1902, 
p.  307  ss. 

I.  ScHULZE,  Eherecht...,  1.  c,  p.  765. 

3.  See  Lehr,  o.  c,  nos943  ss.,  987  and  1069  ;  cf.  G.  Laurent,  La  Repudiation, 
p.  115  ss.  ;  and  132  ss. 

3.  Schulze,  Eherecht...,  1.  c,  p.  764. 

4.  Ibid. 

5.  G.  Laurent,  Repud-,  p.  128  ss.;  Le  Regime  des  Cultes,  p.  no  s. 

6.  Cf.  Envelop.  Brittanica,  VIII,  p.  339-341. 


374 


CIVIL  DIVORCE 


borders  of  the  law  :  the  parties  may  separate  by  private  consent,  without 
the  intervention  of  a  magistrate  (*).  Finally,  in  several  of  the  United 
States  of  North  America,  the  causes  of  dissolution  are  manifold,  and  some 
are  specified  in  a  manner  so  vague,v.g.  drunkenness  and  violence  of  charac- 
ter, that  they  lend  themselves  to  a  very  wide  interpretation  in  practice  (*). 
For  further  details  see  Lehr,  o.  c. 


Paragraph  II.  PROVISIONS  OF  THE  BELGIAN  CIVIL  CODE. 

207. 

Provisions  of  I.  Divorce. 

the  Belgian  .     ^ 

Civil  Code:  A.  Causes. 

1 .  Mutual  consent,  formulated  in  such  a  way  as  to  furnish  in  the  eyes  of 


1.  concerning 

divorce  : 

as  to  its 

causes, 


the  law  the  presumption  of  a  secret  but  grave  cause  for  dissolution. 
Art.  233. 

2.  Determined  causes  {^) : 

a/  Adultery  of  the  wife  ;  adultery  of  the  husband,  provided  he  has  kept 
his  concubine  in  the  same  house  as  his  wife  (*).  Art.  229  and  230. 

b/  Violence  (^),  cruelty  («),  and  grievous  injury  of  one  party  towards  the 
other  (') ;  art  231. 


1.  Laurent,  o.  c,  p.  98. 

2.  SCHULZE,  1.  c. 

3.  Planiol,  o.  c,  I,  nos  1148  and  1149,  gives  a  synoptic  scheme  of  the  causes 
admitted  by  various  legislations,  calling  attention  to  the  fact  that  the  German 
Code  and  the  Code  Napoleon  are  based  on  different  principles.  Cf.  also  Cretinon, 
1.  c,  p.  167  8. 

4.  As  we  have  seen,  the  French  law  of  1884  does  not  require  that  the  husband 
should  keep  his  concubine  in  the  same  house  as  his  wife.  In  Belgium,  however, 
simple  adultery  on  the  part  of  the  husband,  without  concubinage,  suffices  also 
for  divorce,  inasmuch  as  it  may  be  considered  to  constitute  a  grave  injury  to  the 
wife.  See  below,  and  cf.  Repertoire  decennal,  1890-1900,  under  Divorce,  n.  15  s. 

5.  «  By  violence  the  law  understands  attacks  upon  life  or  endangering  life  ». 
AuBRV  et  Rau,  o.  c,  p.  175. 

6.  By  cruelty  is  understood  «  assaults  that  have  not  this  character,  (viz.  of 
violence),  and,  in  general,  every  kind  of  ill-treatment  ».  Ibid.  See  the  singular 
decision  of  19  Feb.  1908,  Pasicrisie,  1908, 11,  p.  283. 

7.  «  Injuries  are  verbal  or  real.    Verbal  injuries comprise  insulting 

remarks,  words  of  contempt,  and  calumnious  or  defamatory  imputations 

Real  injuries  comprise  all  acts  which  constitute  an  insult,  an  outrage,  or  a  mark 
of  contempt  ».  Ibid.,  p.  176. 

Jurisprudence  is  giving  an  ever  widening  extension  to  this  cause  for  divorce  ; 
as  may  be  seen  in  the  Repertoire,  1.  c,  nos  28-87,  where  the  different  judicial 
decisions  are  recorded.  Thus  it  admits  that  the  adultery  of  the  husband, 
without  concubinage,  may  constitute  a  grave  injury  to  the  wife,  as  also  the 


CIVIL  DIVORCE  375 

c/  The  condemnation  of  one  of  the  parties  to  a  degrading  punishment 
(peine  infamante)  (*).  Art.  232. 

d/  The  case  of  art.  310,  already  mentioned.  The  partner  against  whom 
the  other  party  has  obtained  a  separation,  for  any  other  reason  except  the 
adultery  of  the  wife,  may  after  the  lapse  of  three  years,  demand  divorce 
from  the  Court,  which  will  grant  it,  if  the  original  complainant,  present  or 
duly  summoned,  does  not  consent  immediately  to  put  a  stop  to  the  separa- 
tion («). 


unlawful  refusal  of  the  conjugal  duty ;  also  a  criminal  conviction  or  a  merely 
correctional  punishment,  according  to  the  nature  of  the  facts  on  which  the 
verdict  was  based.  Pasicrisic,  igorj,  II,  p.  239  ;  1911,  II,  p.  90  s.,  comp.  however 
with  Pasicrisic,  1908,  II,  p.  381  s.  See  also  Paoli,  o.  c,  p.  163  ;  Glasson,  o.  c,  p. 
273  ;  Basdevant,  o.  c,  p.  215 ;  Planiol,  o.  c,  I,  n.  1156  (cf.  n^s  X150,  1158  and 
1169  s.)  ;  AuBRY  et  Rau,  1.  c,  p.  172  ;  Archiv.f.  k.  K.,  1909,  p.  253  s.  It  includes 
also  the  refusal  of  one  of  the  parties  to  be  married  with  the  rites  of  the  Church, 
after  the  respective  party  has  promised  to  be  so  married  [Pasicrisic,  1910,  IV, 
p  125.  s.) ;  abandonment  of  the  home,  at  least  in  certain  contingencies  [Pasicrisie^ 
1908,  II,  p.  308  s.  ;  1910,  II,  p.  302  ss.) ;  the  fact  of  suspicious  visits  paid  by  the 
wife  to  another  man  [Pasicrisic,  1912,  II,  p.  150  s.)  ;  onanism  on  the  part  of  the 
husband  unknown  to,  or  against  the  will  of  the  wife  [Pasicrisic,  1900,  IV,  p.  59 
s. ;  1908,  II,  p.  308  s.)  ;  the  transmission  of  a  venereal  complaint  (Pasicrisic,  1909, 
IV,  p.  37  s).  See  also  Pasicrisic,  1909,  II,  p.  153  s.  According  to  the  Cour  de 
Liege,  «  excessive  drinking  on  the  part  of  the  wife,  brought  about  by  the  kind 
of  living  adopted  by  the  wife  without  opposition  from  her  husband,  and  not 
degenerating  into  a  scandal,  or  into  inveterate  intemperance,  does  not 
constitute  a  grievous  injury  sufficient  for  divorce;  nor  do  insulting  remarks 
provoked  by  the  husband's  wrongdoing  »  (Arret  du  38  Juillet  1909,  Pasicrisic 
II,  399).  The  mere  refusal  of  the  husband  to  comply  with  his  conjugal  duty, 
[Pasicrisic,  1909,  III,  p.  396  s.  with  the  references  quoted),  or  to  re-admit  his 
wife  into  the  house,  is  no  longer  a  sufficient  cause  [Pasicr.,  1909,  11,  p.  i^^o  s.). 

1.  Cf.  Planiol,  o.  c,  I,  nos  1171-1175.  Laurent,  Avant-Projct,  II,  p.  20  s., 
explains  what  was  formerly  understood  by  this  term  ;  he  adds  that  punishments 
legally  branding  with  infamy  have  been  abolished  as  such  in  Belgium  by  the  new 
penal  code  of  1867  (art.  7).  Hence  it  is  controverted  whether  the  provision  of  art. 
233  has  to  be  taken  into  account  at  the  present  day  ;  in  other  words,  whether 
condemnation  to  a  penalty  formerly  branding  a  person  with  infamy  before  the 
law,  constitutes  at  the  present  day,  on  this  ground,  a  cause  for  divorce.  As  we 
have  stated,  the  jurisprudence  would  regard  it  in  any  case  as  a  cause  for 
divorce,  by  reason  of  the  injury  it  inflicts  on  the  other  party.  Laurent 
proposes  the  suppression  of  this  article.  For  the  jurisprudence, see  Repertoire,  I.e., 
nos  80-87. 

2.  The  jurisprudence  is  not  uniform  in  the  application  of  art.  310  to  the  case  in 
which  the  party,   who  refuses  cohabitation,  does  so  legitimately,  v.  g.  because 


376  CIVIL  DIVORCE 

formalities,       B.  Formalities. 

The  very  complicated  formalities  to  be  observed  in  order  to  obtain  a 
divorce  by  mutual  consent  are  described  in  art.  275-294 ;  those  which  relate 
to  divorce  for  a  determined  cause,  are  enumerated  in  art.  234-274,  modified 
by  the  law  of  12  Feb.  1905  (*). 

Once  the  formalities  have  been  complied  with,  if  the  judge  considers 
that  the  parties  fulfil  the  conditions  required  by  the  law, he  does  not  himself 
pronounce  the  divorce,  but  he  authorises  the  applicant  to  present  himself 
before  the  civil  officer  in  order  to  get  it  pronounced.  Art.  258  and  264  (*). 
effects ;         c.  Effects. 

1.  General  effects,  a/  The  bond  of  civil  marriage  once  dissolved,  the  par- 
ties may  lawfully  remarry  ;  they  may  also,  by  virtue  of  art.  295,  happily 
modified  by  the  law  of  1906  {^),  come  together  again,  by  having  their 
marriage  re-celebrated,  b/  Mutual  conjugal  obligations  and  rights  cease,  c/ 
The  power  of  the  husband  over  the  goods  and  the  person  ot  his  wife  also 
ceases  ;  and  she  thereby  recovers  her  full  legal  capacity  (*). 

2.  Special  effects,  a/  If  the  divorce  was  pronounced  for  a  determined  cause, 
the  wife  may  remarry  after  10  months  (a.  296)  (^) ;  the  husband  guilty  of 


living  together  is  morally  intolerable.  CL  Repertoire,  1.  c,  nos  gi,  g^^  gj,  97  and 
lOi ;  Pasicrisie,  1910,  III,  57.  See  also  Annales  Parlementaires  (Beiges)  —  Senate, 
Session  of  16  March  1911,  p.  238. 

I.  Servais  et  Meckel  YNCK,  Les  Codes,  1907  ;  Sow  ah, Revue  catholique  de  droit, 
1906,  p.  195  s.  ;  Knock,  Rev.  eccles.  de  Liege,  1905-1906,  p.  3 £8-333. 

The  procedure  in  case  of  a  divorce  for  a  determined  cause,  although  simpler 
than  in  the  case  of  divorce  by  mutual  consent,  is  nevertheless  much  more  com- 
plicated than  the  ordinary  procedure. 

3.  In  France,  since  the  law  of  1886,  divorce  is  no  longer  pronounced  by  the 
civil  officer,  as  we  have  already  noticed  ;  after  the  sentence  of  the  judge,  the 
entry  in  the  civil  register  is  sufficient.  Note,  however,  that  it  is  not  the  judge, 
strictly  speaking,who  pronounces  the  divorce  although  the  text  of  the  law  seems 
to  say  so;  he  declares  rather,  as  in  Belgium,that  there  is  a  cause  for  divorce;  the 
latter  is  accomplished  only  by  the  entering  in  the  register,  and  it  is  only  then 
that  it  commences  to  produce  its  effects.  Cf.  Planiol,  o.  c,  I,  n«>»  1229, 1230  and 
1231.  In  the  last  of  these  passages  the  author  says  :  «  It  is  from  this  (the  inscrip- 
tion in  the  register),  and  not  from  the  sentence  of  the  judge,  that  the  divorce 
results  ;  it  takes  effect  at  the  registry  office  (mairie),  not  at  the  court  ». 

3.  See  Coll.  Brug.,  i.  XI,  p.  318  s. ;  Knock,  1.  c,  1906-1907,  p.  330  s. 

4.  The  various  legal  disabilities  that  the  wife  contracts  according  to  art.  215 
ss.  have,  therefore  been,  removed. 

5.  See,  however,  note  on  b/.  The  purpose  and  import  of  this  enactment  are 
explained  in  Castan,  o.  c,  p.  31  s. ;  he  notes  also  the  changes  introduced  on  this 
point  by  the  French  law  of  the  13'^  of  July  1907  :  the  legal  delay  need  not  be 


CIVIL  DIVORCE  377 

adultery  may  not  marry  his  accomplice  (a.  298)  (*)  ;  «  the  party  against 
whom  the  divorce  has  been  granted  will  lose  all  the  advantages  that  the 
other  party  has  conferred  on  him,  either  by  the  marriage  contract  or  since 
the  marriage  (a. 299),  whereas  the  other  party  who  has  obtained  the  divorce 
will  retain  all  the  advantages  conferred  by  the  other  party  »  (^)  art.  300.  b/ 
If  the  divorce  was  brought  about  by  mutual  consent,  neither  of  the  parties 
may  contract  a  fresh  marriage  until  three  years  after  the  pronouncement  of 
the  divorce  (a.  297)  (^),  and  full  right  ot  ownership  over  half  of  the  property 
of  each  of  them  accrues  to  the  children  born  of  their  marriage  (a.  305)  (*). 
II.  Corporal  Separation. 

A.  Causes. 

208 

«  In  cases  in  which  divorce  may  be  demanded  for  determined  causes,  the  2.  concerning 

parties  will  be  free  to  demand  separation  »  (art.  306) ;  «  it  cannot  take  place    separation, 
by  mutual  consent  »  of  the  parties  (art.  307). 

B.  Formalities. 

An  action  for  corporal  separation  «  will  be  brought,  investigated,  and 

observed  when  a  separation  of  three  years  has  already  preceded,  and  when  the 
inscription  of  the  divorce  has  been  made  300  days  after  the  first  judgment  on  the 
matter. 

I.  Cf.  Rev.  eccles.  de  Liege,  1905-1906,  p.  334  ;  Cast  an,  o.  c.  p.  28  s. ;  in  France 
the  law  of  the  ist^i  of  Dec.  1904  has  removed  this  prohibition.  A  bill  with  the 
same  purport  was  laid  before  the  Belgian  Senate,  but  it  was  rejected.  See  Anna- 
tes Parlementaires,  1909-1910,  Senat,  22  et  23Fev.  1910. 

3.  It  would  be  unjust  to  apply  to  the  case  of  art.  310  those  provisions  that 
favour  the  party  who  has  obtained  divorce  to  the  detriment  of  the  other  party ; 
this  would  be  giving  a  legal  advantage  to  the  party  who  is  in  the  wrong,  and 
who,  after  three  years,  demands  and  obtains  a  divorce,  although  the  sentence  of 
separation  was  previously  pronounced  against  him.  The  purpose  of  the  law  also 
is  opposed  to  this  ;  for,  if  the  law  permits  the  conversion  of  separation  into 
divorce,  this  is  not  directed  against  the  party  who  refuses  to  cohabit,  but  simply 
secures  that  the  other  party  shall  not  be  kept  in  compulsory'  celibacy.  Jurispru- 
dence, moreover,  is  here  in  accord  with  equity.  Repertoire,  1.  c,  nos  94,  gg, 
and  102. 

3.  The  divorced  parties  who,  in  accordance  with  the  terms  of  art.  ags,  reunite, 
causing  their  marriage  to  be  celebrated  anew,  are  not  bound  «  to  observe  the 
delay  of  three  years  fixed  by  art.  397,  nor  even  the  delay  fixed  by  art.  328  and 
396,  if  the  woman  has  not  contracted  in  the  meantime  another  marriage,  of 
which  the  dissolution  dates  back  at  least  ten  months  ».  Art.  295,  amended  by  the 
law  of  the  8  Feb.  1906. 

4.  According  to  the  terms  of  art.  273,  <  the  action  for  divorce  is  cancelled  by 
the  reconciliation  of  the  partners  ».  For  the  interpretation  of  this  article  and 
of  article  273,  see  the  judgment  of  the  supreme  Court  (Cour  de  Cassation), 
14  Dec.  1910  (Pasicrisie,  1912, 1,  p.  38  ss.). 


37^  CIVIL  DIVORCE 

judged  in  the  same  manner  as  any  other  civil  action  (art.  307  ;  cf.  art. 
875-881  of  the  Code  de  Procedure  civile).  It  follows  that  separation,  unlike 
divorce,  has  to  be  pronounced  by  the  judge  and  not  by  the  civil  officer  ; 
but  a  judicial  sentence  is  absolutely  necessary,  and  a  separation  made 
by  mutual  consent  of  the  parties  is  null  and  void  in  law. 
C.  Effects. 

1 .  The  marriage  continues  to  exist  before  the  law,  and  consequently  any 
fresh  union  is  forbidden  ;  even  separated  partners  are  bound  by  their  con- 
jugal obligations  (assistance,  fidelity  etc.),  excepting  cohabitation  and  com- 
munity of  goods  (art.  311). 

2.  The  wife  does  not  recover  her  full  legal  capacity  of  which  her  marriage 
had  deprived  her,  according  to  the  provisions  of  art.  215  ss.  See  art.  1449. 

3.  The  party  against  whom  the  separation  was  obtained  does  not  incur 
the  forfeiture  specified  in  art.  299  ss.  ('). 

Note,  a/  As  to  the  condition  of  the  children  in  case  of  divorce  or 
corporal  separation,  see  Courrjege,  o.  c. 

b/  When  separation  has  been  granted,  there  is,  apparently,  still  room 
for  a  petition  for  divorce,  even  without  alleging  a  fresh  cause.  See  Revue 
de  Droit  Beige,  in  Pasicrisie,  1912,  II,  p.  150  s. 

Paragraph  UI.    CRITICISM  OF  THE  LAW  OF  CIVIL  DIVORCE  AND 

CORPORAL  SEPARATION. 

209. 
Law  of  civil       I.  In  GENERAL. 

rffworc^  and      ^^le  civil  law  permitting  divorce  is  iniquitous,  and  merits  the  severest 

iniquitous  a)  condemnation : 

constaered  tn  1  jn  itself,  a/  It  constitutes  a  sacrilegious  usurpation.  In  fact  it  arrogates 
to  itself  the  right  of  governing  Christian  marriage,  a  matter  which  belongs 
to  the  exclusive  jurisdiction  of  the  Church,  as  we  shall  show  later ;  whereas 
the  secular  authority  has  the  right  only  of  giving  statutory  effects  to  the 
marriage.  This  applies  not  only  to  divorce,  but  also  to  the  law  permitting 
separation. 

b/  Moreover,  admitting  hypothetically  the  right  of  the  secular  authority 
over  these  marriages,  analogous  to  the  right  which  the  civil  authority  has 
over  the  marriages  of  infidels,  the  iniquity  of  the  law  of  divorce  is  not  less 


I.  For  the  Belgian  jurisprudence,  cf.  Pasicrisie,  1867,  II,  p.  400  s.  ;  arret  de 
la  Cour  de  Liege,  04  F^v.  1897,  which  reads  :  «  since  the  decisions  of  our  Court 
of  Cassation,  ag^i  of  May,  1847  {Pasiscrisie,  1848, 1,  p.  7)  and  24'^^  of  March,  1865, 
jurisprudence  is  settled  in  this  sense  in  Belgium  ».  Jurisprudence  in  France  has 
adopted  a  different  interpretation  since  the  year  1845.  Cf.  Aubry  et  Rau,  o.  c, 
V,  p.  306  s.,  with  note  ;  Planiol,  o.  c,  I,  n.  1332  ;  Annates  ParUmentaires 
(Belges)-Sdnat,  (15  Mars  1911),  p.  221  s. 


CIVIL  DIVORCE  379 

patent,  since  it  conflicts  with  the  sacred  principle  of  the  indissolubiUty  of 
marriage. 

It  cannot  be  denied  that  the  matrimonial  contract,  whatever  be  the  au- 
thority that  governs  it,  is  a  contract  of  a  special  kind,  indissoluble  by  nature, 
as  we  have  proved  in  n°  i8o,  and  as  even  the  authors  of  the  civil  Code 
recognised  (').  The  secular  authority,  therefore,  even  supposing  it  compe- 
tent, has  to  reckon  with  the  natural  and  the  divine  law,  which  sanction 
this  indissolubility  (*). 

Let  it  not  be  said  that  the  law  of  divorce  leaves  intact  the  marriage 
bond,  and  that  it  concerns  itself  only  with  civil  formalities.  Does  it  not  in 
reality  presume  to  attack  the  contract  itself  ?  Does  it  not  presume  to  annul 
the  contract,  as  though  this  were  not  beyond  its  power  ?  Is  it  not  intended 
to  loosen  the  conjugal  bond  to  such  an  extent  that  the  parties  cease  to 
belong  to  each  other,  that  they  become  strangers  to  each  other,  and 
capable  of  contracting  a  new  alliance  (')  ? 

The  law  of  divorce  is  not  less  iniquitous  : 

2.  In  its  consequences. 

In  reality  it  is  incapable  of  effectively  breaking  the  marriage  bond ;  but 
it  grants  a  legal  faculty  for  violating  the  indissolubility  of  marriage,  and 
hence  is  responsible  for  the  consequences.  These  consequences  we  have 
indicated  in  n°  i8o ;  the  education  of  the  children  is  imperilled,  mutual 
love  and  conjugal  fidelity  are  enfeebled,  and  finally  the  existence  of 
marriage  itself  is  called  into  question. 


1.  See  the  evidences  quoted  above,  no  304,  note. 

2.  The  lawfulness  of  divorce  is  not,  therefore,  a  necessary  consequence  of  the 
institution  of  civil  marriage,  though  Bonomelli  seems  to  admit  this  (o.  c.,  p. 
59)  :  €  Posto  il  principio  del  matrimonio  civile,  e  necessaria  e  naturale  la  conse- 
guenza  del  divorzio  :  il  matrimonio  diventa  un  contratto  come  qualunque  altro, 
e  non  v'ha  ragione  di  volere  que  questo  sia  indissolubile,  mentre  tutti  gli  altri 
non  lo  sono,  ne  lo  ponno  essere  ».  Nevertheless,  considering  matters  in  the  con- 
crete, it  is  beyond  question,  as  we  have  already  noted  in  no  203c,  that  the  intru- 
sion ot  civil  marriage  enfeebled  the  idea  of  indissolubility,  and  thereby  opened 
the  way  for  divorce.  Moreover,  in  the  mind  of  the  legislators  of  1792,  the  one 
was  involved  in  the  other. 

3.  The  law  of  divorce  has  in  view  the  dissolution  of  the  marriage  bond  itself, 
and  not  merely  the  annulling  of  the  civil  formalities  that  accompany  marriage. 
This  results  from  the  very  nature  of  civil  marriage  dissolved  by  divorce. In  fact, 
civil  marriage,  in  the  eyes  of  the  law,  far  from  being  a  simple  declaration  made 
by  the  contracting  parties  in  order  to  regularise  their  civil  position,  is 
considered  as  a  true  matrimonial  contract,  conferring  on  the  parties  the  title  of 
married  persons,  with  all  the  rights  and  obligations  proper  to  the  married  state. 
The  very  terms  of  the  Code  prove  this,  no  less  than  the  origin  and  the  institu- 
tion ot  civil  marriage  ;  of  which  more  later. 


380  CIVIL  DIVORCE 

In  vain  those  who  favour  civil  divorce  appeal  to  the  liberty  of  worship, 
as  though  the  one  liberty  implied  the  other  (*).  We  reply,  first,  that  liberty 
of  worship  is  not  the  ideal,  and  we  maintain  the  distinction  between  the 
thesis  and  the  hypothesis.  Moreover  and  especially,  the  civil  authority 
cannot  maintain  the  right  to  permit  divorce  even  to  those  whose  religion 
authorises  the  dissolution  of  marriage.  To  safeguard  liberty  of  worship  and 
of  conscience  does  not  mean  granting  to  citizens  without  distinction  all 
that  the  various  religions  concede,  even  in  defiance  of  the  higher  law  of 
nature  and  contrary  to  the  commonweal.  That  is  evident,  and  it  is  not 
less  clear  that  the  natural  law  and  the  good  of  society  require  the 
indissolubility  of  marriage.  Moreover,  it  is  thus  that  the  law  reasons  when 
it  proscribes  polygamy ;  and  one  admits  that  the  law  is  right,  although 
plurality  of  wives  is  permitted,  for  instance,  by  the  Mohammedans  and 
the  Mormons. 

bjinparticu-      II.  In  PARTICULAR. 

lar  points ;        ^  ..,,,,.  .  r        i        •    ,    , 

Even  supposmg  it  to  be  tolerable,  m  certam  cases,  tor  the  civil  law  to 

permit  divorce  (*),  there  are  certain  provisions  in  the  Belgian  Code  that 

must  be  disapproved  in  any  case.  Thus  : 

causes  of        A.  Concerning  the  causes  of  divorce. 

divorce. 

1.  Mutual  consent  ought  not  to  be  admitted,  as  Laurent  himself  suggest- 
ed, in  his  Avant-Projet,  II,  p.  17  s. ;  the  admission  of  this  cause,  he  says, 
consecrates,  not  in  theory  or  in  the  mind  of  the  legislator,  but  in  practice 
and  in  fact,  the  error  «  which  likens  marriage  to  an  ordinary  contract,  and 
permits  it  to  be  dissolved,  as  it  is  formed,  by  the  consent  of  the  contracting 
parties  »  ('). 

2.  The  significance  of  the  term  injuries  ought  to  be  made  more  precise 
and  restricted,  whereas  the  practice  of  the  Courts  is  to  widen  its  meaning, 
so  as  to  include  among  causes  for  divorce  so-called  real  injuries,  thus  leading 

I.  See  no  204,  in  note,  how  Treilhard  invoked  this  liberty  of  worship. 

3.  It  follows  sufficiently  from  what  has  been  said,  that  the  law  of  divorce,of  its 
own  nature,  is  bad  and  deserving  of  condemnation.  Yet  we  ought  not  hastily  to 
conclude  that  its  suppression  pure  and  simple  is  to  be  desired,  in  countries  witere 
civil  marriage  ts  in  force.  As  De  Becker  well  remarks,  De  Matr.,  p.  428  :  «  If  civil 
marriage,  so  different  from  true  marriage,  were  to  be  considered  indissoluble, 

and on  that  understanding,  were  to  be  always  assured  of  the  protection  of  the 

law,  whilst  the  Church  so  often  declares  these  pretended  unions  to  be  mere  con- 
cubinage, we  should  be  involved  in  consequences,  the  inconvenience  and  misery 
of  which  are  only  too  patent  ». 

3.  This  cause  was  suppressed  in  the  French  law  in  1884,  and  likewise  rejected 
in  the  German  law  promulgated  in  1896.  Cf.  art.  1564  ss.  ;  Riberolles,  o.  c,  p. 
107  and  161. 


CIVIL  DIVORCE  381 

to  the  evasion  of  the  law,  and  to  the  obtaining  of  dissolution  of  marriage 
for  causes  that  are  not  legal ;  as  is  shown  very  clearly  by  Lemaire,  o.  c,  p. 
173-177,  and  RiBEROLLEs,  o.  c,  p.  118  ss. 

3.  Furthermore,  the  provision  of  art.  310  ought  to  be  struck  out.  As  it  is, 
the  culpable  party,  against  whom  the  separation  was  granted,  has  the  right 
to  demand  a  divorce,  and  the  judge  is  bound  to  pronounce  it  (')  whenever, 
after  three  years  of  separation,  the  innocent  party  refuses  to  renew  conjugal 
relations,  at  least  when  such  a  course  is  morally  possible  (*). 

«  Does  not  this  put  the  innocent  party  at  the  mercy  of  the  culprit,  and, 
contrary  to  all  justice,  secure  to  the  latter  the  right  of  profiting  by  his  mis- 
behaviour ?...  Art.  310  is  opposed  to  the  very  purpose  for  which  the  law 
sanctions  separation  :  the  law  sanctions  it  out  of  respect  for  religious 
scruples  (^) ;  then  it  compels  the  party  who  applied  for  a  separation,  to  be 
divorced  in  spite  of  scruples*.  Laurent,  Avant-Prqjet,  p.  16.  See  also 
Lemaire,  o.  c,  p.  178  s.  ;  Planiol,  o.  c,  I,  n°^  1349  and  1351.  (*) 

B.  Concerning  corporal  separation. 

Since  separation  was  introduced  into  the  Code  out  of  consideration  for  concerning 
Catholics,  to  take  for  them  the  place  of  divorce,  it  would  be  equitable  and  **"'"'*  *^^' 
in  accordance  with  the  purpose  of  the  law,  that  separation  should  be  avail- 
able for  the  same  causes  as  divorce,  that  it  should  have  the  same  effects  as 
the  latter,  and  that  it  should  be  freed  from  such  embarrassing  conditions  as 
may  from  time  to  time  morally  compel  Catholic  parties  to  prefer  di- 
vorce (s). 

I.  Repertoire  decennal,  1.  c,  no  lOO. 

3.  Several  judicial  decisions  have  resulted  in  applying  the  law  even  in  cases 
when  it  was  morally  impossible  for  the  innocent  party  to  re-establish  conjugal 
relations.  Cf.  Repertoire  decennal,  1.  c,  nos  g6,  97,  loi,  103  ;sce  above,  no  207. 

3.  See  above,  no  204. 

4.  The  modified  text  of  art.  310,  to  be  voted  on  by  the  Belgian  Senate,  March 
i6th  1911,  is  as  follows  {Annates  Parlementaires,  Stance  du  i6  Mars,  p.  243  s.)  : 
«  When  separation,  pronounced  for  any  other  reason  but  adultery,  has  lasted 
three  years,  the  original  defendant  has  the  right  to  demand  a  divorce  from  the 
Court,  and  the  Court  may  grant  it,  if  the  original  complainant,  either  present  or 
duly  summoned,  does  not  consent  immediately  to  put  an  end  to  the  separation  ». 
If  this  text  passes  into  law,  the  sentence  of  separation  will  not  be  converted  de 
jure  into  a  sentence  of  divorce  ;  the  conversion  will  be  left  to  the  discretion  of 
the  judge,  who  will  have  to  adjudicate  on  the  entire  situation  in  view  of  the  com- 
mon interest  of  the  parties,  the  interest  ol  the  children  and  that  of  public  mora- 
lity. See  the  speech  of  the  Minister  of  Justice,  Stance  du  16  Mars  1911,  1. 
c,  p.  228. 

5.  Such  is  the  case  in  the  German  Code  :  separation  is  obtainable  for  the  same 
causes  as  divorce  ;  the  same  effects  follow,  except  ability  to  contract  a  fresh 
marriage  in  case  of  separation.  See  art.  1586. 


382  CIVIL  DIVORCE 

Mr.  Al.  Braun,  some  years  ago,  brought  before  the  Belgian  Senate 
a  bill  of  this  purport,  modifying  the  whole  economy  of  the  clauses  relating 
to  corporal  separation  (').  The  Senate  passed  the  principal  clauses  of  this 
bill  on  the  16**'  of  March,  1911  (*). 

Besides  the  modification  of  art.  312  (see  above,  n"  170),  and  of  art.  310, 
the  changes  ratified  by  the  Senate  are  as  follows  :  1.  the  new  article  311b 
declares :  «  art.  299  is  applicable  to  corporal  separation  »  (see  above, 
n°  208) ;  2.  art.  1449  is  thus  modified  :  «  the  separated  wife  enjoys  the  full 
exercise  of  her  civil  capacity,  without  needing  recourse  to  the  authorisation 
of  her  husband  or  of  the  courts  »  {'). 

Paragraph  IV.  MORAL  COROLLARIES. 

First  Corollary. 

211. 

I.One  may,      From  a  moral  standpoint,  that  a  Catholic  should  apply  for  corporal 

conditions,    separation  to  the  civil  courts,  that  the  counsel  should  act  in  his  name, 

tolerate  appli-  ^^^  ^/j^^  f]^^  separation  should  be  pronounced  by  the  judge, may  be  tolerat- 

civil  court  for  ed  (*),  on  condition  aj  «  that,  in  the  opinion  of  the  Bishop,  there  exists  a 

separation ;  j^^^  cause  for  separation  ;  hj  that  the  Catholic  party  cannot  apply  to 

any  other  tribunal  to  obtain  a  separation  (valid  in  the  civil  courts)  ; 

c/  that  the  sentence  pronounced  has  no  effect  other  than  the  aforesaid 

separation  »  (*). 

Second  Corollary. 
2.  application     Application  for  divorce  by  a  Catholic  or  by  his  counsel  may  similarly 
a  purely  civil  ^^  tolerated, when  the  parties  in  question  have  been  united  by  a  civil  mar- 
marriage  ;    yiage  only,  or  when  the  marriage,  canonically  contracted,  has  been  dissolv- 
ed or  declared  invalid  ;  on  condition  that  the  application  be  made,  not 
with  the  intention  of  acknowledging  in  the  civil  tribunal  any  power  to 
dissolve  the  marriage,  but  solely  for  the  purpose  of  regaining  civil  com- 


I.  Cf.  Collat.  Brug.,  t.  XI,  p.  326  s. 

a.  Annates  Partefnentaires-Sinat.,  stances  du  14,  15,  et  16  Mars  1911. 

3.  This  is  the  case  in  France,  by  virtue  of  the  law  of  the  6'*^  of  Feb.  1893.  Cf. 
Planiol,  o.  c,  I,  nos  1322-1334  ;  All^gre,  o.  c,  I,  p.  177. 

4.  We  say  «  tolerated  »,  because  recourse  to  the  civil  tribunal,  in  matters 
concerning  Christian  marriage,  already  contravenes  Catholic  teaching,  which 
declares  that  all  matrimonial  causes  are  reserved  entirely  to  the  ecclesiastical 
tribunal. 

5.  Decree  of  the  C.  S.  O.,  Dec.  19th  i860,  to  which  the  same  Congregation 
refers  in  a  later  decree  of  April  3rd  1877.  Cf.  N.  R.  Th.,  XVIII,  pp.  484-486. 


CIVIL  DIVORCE  383 

Petence  to  contract  a  fresh  marriage,  and  of  protecting  the  applicant  and 
the  priest  from  civil  penalties  in  case  of  afresh  marriage  ('). 

Third  Corollary. 

It  may  also  he  tolerated  also  that  *  the  Catholic  lawyer  should  defend  3.  and  defen- 
his  client  against  the  petitioner  in  a  divorce  suit....  on  condition  that  ^ttfioner  in 
the  Bishop  is  satisfied  of  the  honesty  of  the  lauyer  and  that  the  latter    a  divorce 
conforms  to  the  principles  of  natural  and  ecclesiastical  law  *  (*). 

Fourth  Corollary. 


To  grant  a  divorce  fin  case  of  a  canonically  valid  marriage)  (')  does  i.  To  grant  a 

not  appear  to  be  an  act   intrinsically  bad,   but  only  unseemly  (male   gf  „  canoni- 

sonans),  so  that,  apart  from  special  circumstances,  and  the  Positive   '^^^^y  '"f'^^^ 

marrtage 
prohibition  of  the  Church,  this  act  seems  to  be  lawful. 

A.  Explanation. 

An  action  may  be  intrinsically  bad  or  simply  unseemly  (male 
sonans). 

1 .  Any  action  is  intrinsically  bad  which  cannot  be  performed  without 
fault,  that  is  to  say,  which  is  bad  either  on  account  of  its  ^ro/>cr 
object,  or  on  account  of  an  illicit  circumstance  which  is  bound  up  with 
it,  and  which  can  neither  be  separated  from  it  nor  itself  become  legiti- 
mate. An  act,  therefore,  may  be  intrinsically  bad  not  only  on 
account  of  its  proper  object  (such  as  an  act  of  blasphemy),  but  also 
a/  on  account  of  the  perverse  intention  which  it  necessarily  con- 
tains ;  or  further  b/  on  account  of  the  immediate  co-operation  which 
it  affords  to  the  bad  action  of  another,  if  this  co-operation  is  effec- 
tive (*) ;  c/  or  finally,  on  account  of  the  indirect  scandal  occasioned. 


1.  Decree  of  the  C.  S.  O.,  Sept.  9th  1834   (Cf.  N.  R.  Th.,  XVIII,  p.  412  s.). 

2.  Decree  of  the  C.  S.  O.  of  20  March  i860,  to  which  the  same  Congregation 
refers  in  its  decree  of  3  Apr.  1877  (N.  R.  Th.,  XVIII,  p.  485). 

3.  In  what  follows,  we  make  no  distinction  between  the  duties  of  the  judge, 
whose  function  it  is  in  Belgium  to  declare  whether  there  is  a  cause  for  divorce, 
and  the  duties  of  the  municipal  officer,  whose  function  it  is  to  pronounce  the 
divorce.  See  above,  n"  207. 

4.  Immediate  co-operation  in  the  bad  act  of  another  (not  simply  in  a  bad  result) 
renders  the  act  of  the  co-operator  intrinsically  bad,  whether  he  really  takes  an 
active  share  in  the  sin  of  the  other  or  simply  exercises  over  him  a  moral,  but 
direct  and  immediate,  influence,  by  counsel,  command  or  effective  compulsion  of 
any  kind.  Exception  must  be  made  in  the  case  where  a  lesser  evil  is  suggested, 
at  least  when  this  lesser  fault  is  contained  in  the  greater  one  that  is  to  be  avoid- 
ed. 


384  CIVIL  DIVORCE 

of  the  co-operation  afforded  in  evil  results,  or  of  the  mediate  co-opera- 
tion in  the  bad  act  of  another  (*),  in  case  the  scandal  or  the  results 
in  question  are  so  great  and  of  such  a  nature  that  they  are  not 
counterbalanced  under  any  circumstances. 

2.  Any  action  is  unseemly  which  it  is  possible  to  perform  without 
fault,  which  is  therefore  good  as  to  its  object,  but  which  is  bur- 
dened with  an  evil  circumstance  that  nevertheless  may  be  separat- 
ed from  it  or  counterbalanced.lt  is  enough  in  that  case  that  there 
should  be  a  sufficient  and  proportionate  reason  for  acting  (*). 
B.  Demonstration. 

does  not         1 .   To  grant  a  divorce  is  not  an  act  intrinsically  bad  on  account  of 
seem  intrin-  ..       ,. 
sicallyevil,    its  Object. 

Taken  in  itself,  this  act  implies  only  the  dissolution  of  the  civil 
ceremony  of  marriage  and  by  no  means  the  breaking  of  the 
matrimonial  bond,  which  in  fact  remains  untouched  ('). 

Strictly  speaking,  the  real  marriage  which  still  subsisfts  is 
undoubtedly  deprived  of  its  civil  effects  and  of  its  recognition 
before  the  law,  and  the  parties  obtain  legal  power  to  contract  a 
new  union  ;  and  hence  it  is  that  cooperation  is  unquestionably 
lent  to  the  evil  effects  of  the  law  as  well  as  to  the  sin  of  another  ; 
but  the  specific  object  of  the  act  is  nevertheless  the  dissolution 
of  the  civil  formalities  and  nothing  more. 

2.  To  grant  a  divorce  is  not  any  the  more  an  act  intrinsically 
evil  because  of  the  existence  of  an  evil  circumstance  inseparably 
hound  up  with  it  and  not  admitting  any  counterbalancing  good  effect. 

a./  In  the  first  place,  it  does  not  necessarily  imply  a  bad  intention. 
On  the  one  hand,  the  explicit  intention  of  violating  the  law  of 
indissolubility  or  of  usurping  the  jurisdiction  of  the  Church  may 
easily  be  absent  from  the  mind  of  the  judge  and  of  the  public  offi- 


I.  Right  Rev.  Dr.  Waffelaert,  Cooperation,^.  6  s.  holds  that  this  is  co-opera- 
tion in  the  broad  sense  of  the  word,  and  at  the  same  time  indirect  scandal. 

3.  S.  Thomas,  Quodlib.,  IX,  art.  5,  in  corpore. 

3.  «  As  civil  marriage  does  not  in  any  way  affect,  as  a  marriage,  the  forum 
internum,  so  divorce  does  not  affect  in  any  way  a  religious  marriage  or  marriage 
properly  so  called...  As  the  Church  tolerates  civil  marriage,  provided  that  effects 
which  it  does  not  possess  are  not  attributed  to  it,  so  we  cannot  see  how  the  grant- 
ing of  civil  divorce  can  be  intrinsically  bad  apart  from  its  effects  ».  Right  Rev. 
Dr.  Waffelaert,  Cooperation,  p.  70  ;  cf.  Ballerini-Palmieri,  o.  c,  VI,  Edi- 
tor's note,  no  803. 


CIVIL  DIVORCE  385 

cial  ;  on  the  other  hand,  it  cannot  be  said  that  this  intention  is  im- 
plicitly and  necessarily  contained  in  the  pronouncing  of  the  divorce 
itself,  as  if  the  official,  in  giving  effect  to  this  impious  law,  were 
supposed  to  conform  his  intention  to  the  evil  intention  of  the 
lawgiver  (').  This  would  happen  only  in  the  supposition  that  the 
law  was  really  effective  and  actually  dissolved  the  marriage  bond  ; 
or  if  there  were  question  of  applying  the  law  in  hatred  of  religion. 

b/  Neither  is  there  immediate  co-operation  in  the  sins  of  others. 

In  fact,  neither  the  judge  nor  the  civil  officer,  in  pronouncing  a 
divorce,  shares  immediately  in  the  sin  of  the  parties  who,  perhaps, 
intend  to  lead  a  life  of  concubmage,  nor  uses  his  influence  effect- 
ively and  immediately  to  impel  them  thereto,  by  counsel,  by  com- 
mand or  by  any  sort  of  pressure.  What  he  does  is  simply  to  give 
the  parties  the  power  and  the  legal  means  of  leading  a  life  of  sin 
and  of  violating  their  marriage  duties  ;  this  does  not  constitute 
immediate  and  direct  co-operation  in  sin,  but  simply  indirect  and  but  simply 
mediate  co-operation,  since  the  subsequent  sins  will  depend  upon  "'****"*0'» 
the  bad  will  of  the  parties,  following  upon  the  granting  of  the 
divorce. 

c/  With  regard  to  indirect  scandal,  possibly  given  to  the  public,  on  account  of 
the  judge  and  the  State  official  may  prevent  it  to  a  considerable  '3ff  mL^S^ 
extent  by  declaring  on  the  occasion,  or  making  it  apparent  in  co-operation 
some  other  way,  that  they  intend  to  respect  the  matrimonial  other,  and  co- 
bond;  moreover,  the  exigencies  of  their  position  sufficiently  excuse  "^'^f'^^'^'J  ^^^ 
them  on  this  head.  the  law; 

d/  There  remain  then  only  material  co-operation  in  the  evil  effects 
of  divorce,  and  mediate  co-operation  in  the  subsequent  sins  of  the 
parties. 

These  sins  may  indeed  be  very  grave,  and  these  effects  are  but  there  may 
calamitous,  as  we  have  alreadv  said  in  n°  180,  for  the  children,  cfJ!.^!*!!'.!!!" 
for  the  family  and  for  society.  Nevertheless,  these  evils  do  not  terbalancing 
appear  absolutely  to  exclude  counterbalancing  good  ;  there  may  ' 

possibly  exist  causes  sufficiently  urgent  to  render  legitimate  the 
judge's  co-operation. 


(i)  The  legislator  takes  an  immediate  part  in  the  drawing  up  of  the  law,  and 
consequently  by  virtue  of  his  action  he  conforms  implicitly  to  the  law  ;  but,  as 
we  have  already  seen,  the  law  of  divorce  tends  to  the  dissolution  of  the  marri- 
age bond  however  inefficacious  its  attempt  may  be. 

25 


386  CIVIL  DIVORCE 

On  the  one  hand,  in  fact,  the  more  distant  the  co-operation,  the 

easier  it  is  to  establish  an  equihbrium  between  the  good  effect  and 

the  evils  foreseen  ;  moreover,  we  must  take  into  account  the  fact 

that,  if  the  Catholic  judge  or  the  public  official  refuses  to  apply  the 

law,  there  will  be  no  dearth  of  other  magistrates  to  do  it  in  their 

stead.  On  the  other  hand, without  taking  into  account  the  personal 

interest  of  the  officials  in  question  in  retaining  their  position,  it  is 

of  the  highest  importance,  from  the  point  of  view  of  public  policy, 

that  Catholics  should  not  be  compelled  to  resign  en  bloc,  as  it 

were,  and  thus  leave  their  province  to  become  the  exclusive 

preserve  of  men  indifferent  or  inimical  to  religion. 

so  that,  apart     We  except,  however,  the  case  of  special  circumstances  and  of 

^T<^ circum-  P^^^^^''^^  Prohibition  on  the  part  of  the  Church  ;    because  it  may 

stances  and  happen,  for  instance,  that  the  law  has  been  promulgated  out  of 

hibition,the  hatred  for  religion  (although  its  application  may  not,  perhaps,  be 

pronouncing  required  in  the  same  spirit),  or  that  it  may  be  quite  recent,  in 

may  be  law-  which  case  there  may  be   hope   of  obtaining  its   abrogation  by 

'        energetic  resistance.  It  would  then  be  more  difficult  to  excuse  a 

judge  or  a  public  official,  and  the  Church  would  take  the  initiative 

more  promptly  in  issuing  a  positive  prohibition. 

Note.  —  Our  explanation,  which  tends  to  justify  in  general  the 
conduct  of  the  officials  in  question,  evidently  deals  only  with  the 
case  in  which  they  cannot  withhold  granting  a  divorce  without 
infringing  the  law.  The  judge  is  bound  as  far  as  possible 
to  the  strict  interpretation  of  the  law  ;  he  may  grant  a  divorce 
only  when  the  text  of  the  law  compels  him  unquestionably  to  do 
so ;  any  application  of  the  law  beyond  its  strict  tenour  and  the 
limits  which  it  imposes,  is  criminal  ;  and  this  fault,  unhappily,  is 
only  too  frequent  (*). 

C.  Agreement  of  our  thesis  with  the  Roman  Instructions. 

thisopinionis      We  may   quote  here  many   replies  of  the  Holy  See,   openly 
^^tlwRoman    favouring  our  opinion  and  denying  the  intrinsic  malice  of  the  act 

documents,    

I.  RiBEROLLEs,  o.  c,  p.  Ii8-i23,  remarks  that  not  only  do  many  judges  unduly 
stretch  the  plea  of  injury,  but  that  they  are  often  too  speedy  and  too  easy  in 
granting  divorce  to  parties  who  obtain  the  «  pro  Deo  »  and  who  are  designated 
«  assistes  judiciaires  ».0n  the  subject  of  this  abuse  of.  also  La  Rev.  eccles.  de  Liege, 
1905-1906,  p.  334  s.  ;  the  Bi^i  Public,  36  Jan.  1899  and  the  XX^^  Siecls,  6  Oct. 
1903  and  9  Oct.  1904, 


CIVIL  DIVORCE  387 

of  the  judge  and  of  the  pubHc  official.  Such  are  the  declaration 
made  by  the  C.  S.  O.  to  the  Apostolic  Nuncio  in  Belgium,  and 
communicated  on  the  14'''  of  September  1886  to  the  Minister  of 
Foreign  Afifairs  (*)  ;  and  the  reply  of  the  Sacred  Penitentiary,  of 
the  24^^  of  September  1887,  to  the  Bishop  of  Lu9on  (*),  declaring 
lawful  the  aforesaid  pronouncement  in  the  case  proposed.  Hence 
we  infer  unhesitatingly  the  absence  of  intrinsic  malice  ;  for,  on 
the  contrary  supposition,  the  act  in  question  could  not  in  any 
case  be  licitly  performed  (*). 

On  the  other  hand,  however,  the  severity  of  certain  answers 
from  Rome,  notably  the  decrees  of  the  C.  S.  O.  of  25  June  1885  (*), 


1.  The  S.  Congregation  declares  that  the  Decree  of  the  27*  of  May  1886, 
condemning,  for  France,  the  pronouncing  of  divorce,  «  does  not  concern  Belgium, 
and  that  consequently  nothing  is  modified  in  that  country  touching  the  matter 
of  divorce  ».  The  N.  R.  Th.  gives  the  complete  text  of  this  reply  in  t.  XIX,  p. 
73  s.,  and  it  interprets  it  in  t.  XXIII,  p.  669  s.  Read  on  this  subject  De  Bbckbk, 
De  Matr.,  p.  473  s.,  in  note  :  he  rejects  as  unworthy  of  the  Holy  See  the  opinion 
of  certain  authors  (even  of  Gasparri,  o.  c,  II,  no  1243),  who  maintain  that  this 
declaration  is  a  purely  diplomatic  reply  which  notes  the  fact  and  reserves  the 
right.  Cf.  also  Feye,  De  Imp.,  n°  549,  p.  499. 

2.  The  bishop  had  asked  whether  the  public  official  could  pronounce  divorce 
in  case  he  is  forced  to  do  so  under  penalty  of  losing  his  situation,  provided  he 
publicly  admits  the  incompetence  of  the  judge  in  a  matter  of  marriage  and  the 
inefficacy  of  divorce  in  conscience.  The  reply  was  that  it  is  allowable  for  the 
official  in  question  «  to  perform  the  act  of  which  mention  is  made  in  the  ques- 
tion ».  A  full  account  of  the  Decree  may  be  found  in  the  Thbol.  Mechl.,  o.  c, 
p.  188  ;  cf.  N.  R.  Th.,  t.  21,  p.  616  s. 

3.  Gasparri,  o.  c,  II,  who  espouses  the  severe  opinion  in  n"  1248,  acknow- 
ledges in  the  preceding  number  «  that  this  rescript  gives  rise  to  a  serious  diffi- 
culty against  the  rigorous  opinion...  ;  for,  he  says,  it  follows  that  the  existence 
of  the  religious  bond  does  not  prevent,  under  certain  circumstances,  the  tolerating 
of  the  act  of  the  public  official...  who  pronounces  the  sentence  of  divorce  »  ;  and, 
he  adds,  «  the  explanations  given  hitherto  by  the  holders  of  the  rigorous  opinion 
do  not  appear  to  be  solid  ».  In  fact,  as  we  have  just  said,  to  establish  the  truth  of 
our  thesis,  one  single  case,  in  which  the  act  in  question  is  permitted,  is  enough  ; 
and  consequently  it  is  of  little  consequence  that  the  S.  Penitentiary,  on  the  4th 
of  June,  1890,  declared  that  the  rescript  to  the  Bishop  of  Lu9on  concerned  only 
one  particular  case  and  that  the  solution  could  not  be  extended  to  analogous 
cases.  N.  R.  Th.  t,  XXII,  p.  506. 

4.  «  After  the  recent  re-establishment  of  the  law  ot  divorce  in  France,  in  1884, 
many  doubts  were  laid  before  the  S.  C.  of  the  Inquisition  by  the  French  Bishops, 
for  the  purpose  of  ascertaining  if  it  was  lawful  for  lay  judges  to  give  judgment  in 


388  CIVIL  DIVORCE 

and  especially  that  ofay  May  1886  ('),  would  seem  to  support  the 
contrary  opinion.  But  this  apparent  contradiction  is  undoubtedly 
to  be  explained  in  the  following  way  :  In  these  latter  cases,   ty 


cases  of  matrimonial  separation,  whether  a  vinculo,  or  simply  a  mensa  et  toro  ; 
and  if  it  was  lawful  for  barristers  and  solicitors  to  plead  such  causes  before  civil 
judges  ;  also  if  it  was  lawful  for  those,  whose  business  it  is,  to  appoint  official 
counsels  for  the  defence  in  these  cases  ;  and  finally,  if  the  mains  could  pronounce 
divorce.  Their  Eminences  the  Inquisitors  General  and  I,  after  mature  considera- 
tion of  the  question,  have  thought  it  right  to  decree  as  follows,  Thursday,  35  June 
1885: 

Considering  the  very  grave  circumstances  of  time,  place  and  object,  it  may  be 
tolerated  that  magistrates  and  barristers  should  occupy  themselves  with 
matrimonial  cases  in  France,  without  being  obliged  to  resign,  provided  that  they 
publicly  profess  the  Catholic  doctrine  which  assigns  marriage  and  marriage  cases 
to  the  ecclesiastical  judges  exclusively,  and  provided  that  on  the  question  of  the 
validity  or  nullity  of  marriage  as  well  as  of  simple  separation,  cases  of  which 
they  are  required  to  deal  with,  they  are  disposed  never  to  pronounce  a  judgment 
contrary  to  divine  or  ecclesiastical  law,  or  to  defend  the  doing  so,  or  to  encour- 
age or  incite  others  to  do  so  ;  provided  further,  that  in  doubtful  and  difficult 
cases  they  apply  to  their  own  Ordinary  and  conform  to  his  judgment,  and,  if  neces- 
sary, have  recourse  through  him  to  the  Apostolic  Penitentiary.  His  Holiness  has 
ratified  this  decree  ;  and  consequently  we  bring  it  imder  the  notice  of  all  the 
Archbishops  and  Bishops  of  France  for  their  guidance,  by  these  letters  which 
must  not  be  made  public  ».  N.  R.  th.,  XVIII,  p.  489  ss. 

I.  The  following  doubts  were  proposed  by  some  French  Bishops  to  the  S.  R.  et 
Univ.  Inquisitio :  « In  the  letter  of  the  S.  Inq.  of  the  25  June  1885,  addressed  to 
all  the  Ordinaries  of  France  on  the  law  of  civil  divorce,  it  is  decreed  as  follows  : 
Considering  the  very  grave  circumstances  of  time,  place  and  object,  it  may  be  tolerated 
that  magistrates  and  barristers  should  occupy  themselves  with  matrimonial  cases  in 
France,  without  being  obliged  to  resign,  under  certain  conditions,  of  which  the 
second  is  :  that  on  the  questions  of  the  validity  or  nullity  of  marriage  as  well  as  of 
simple  separation,  cases  of  which  they  are  required  to  deal  with,  they  arc  disposed 
never  to  pronounce  a  judgment  contrary  to  divine  or  ecclesiastical  law,  or  to  defend 
tlie  doing  so,  or  to  encourage  or  incite  others  to  do  so  ».  It  is  asked  : 

I.  Is  the  interpretation,  common  in  France  and  even  found  in  print,  correct, 
which  declares  that  the  aforesaid  condition  is  fulfilled,  when  the  judge,  abstracts 
from  a  marriage  contracted  before  the  Church  validly,  so  as  to  apply  the  civil 
law  and  pronounce  that  there  is  ground  for  divorce,  provided  that  he  has  the 
intention  of  dissolving  only  the  civil  effects  and  the  civil  contract,  and  the  terms 
of  the  decision  given  are  confined  to  that  alone  ?  In  other  words,  can  it  be  said 
that  a  decision  pronounced  under  these  conditions  is  not  contrary  to  divine  or 
ecclesiastical  law  ? 

II.  When  the  judge  has  pronounced  that  there  is  ground  for  divorce,  can  the 
maire,  having  regard  to  the  civil  effects  and  the  civil  contract  alone,  as  we  have 


CIVIL  DIVORCE  389 

reason  of  particular  circumstances,  the  ecclesiastical  authority  has 
thought  it  opportune  to  show  greater  severity.  This  circumstance 
was,  perhaps,  in  the  case  of  France  (which  country  the  two 
decrees  concern),  the  recent  introduction  of  divorce  by  the  law  of 
1884.  The  Holy  See  may  have  looked  for  the  arising  of  some 
effective  opposition  ;  and  thus  we  can  understand  how,  in  the 
case  of  Belgium,  where  the  circumstances  were  different,  the 
Holy  Office  did  not  wish  to  impose  the  same  strict  line  of  con- 
duct (•). 

Modern  authors,  who  treat  of  this  question,  differ  in  their  opi-  and  it  is  sup- 
nions.  Some  hold  that  the  pronouncing  of  a  divorce  is  intrinsically  mar^au^}rs 
evil,  or  that  it  is  at  least  always  unlawful  ;  others,  especially  the 
bulk  of  Belgian  theologians,  take  a  less  rigorous  view. 

The  principal    supporters    of   the  more  rigorous  opinion  are 


just  said,  pronounce  the  divorce,  though  the  marriage  is  valid  before  the  Church  ? 

III.  When  the  divorce  has  been  pronounced,  can  the  said  maire  civilly  unite 
with  a  third  person  the  party  who  wishes  to  marry  again,  though  the  first 
marriage  is  valid  before  the  Church  and  the  other  party  is  still  living  ? 

On  Thursday,  27  May  1886,  in  the  General  Assembly  of  the  Holy  Roman  and 
Universal  Inquisition,  the  above  doubts  having  been  laid  before  their  Eminences 
the  Cardinals  Inquisitors  General ;  the  same,  after  having  heard  the  Votum  of 
the  Consultors,  ordered  answer  to  be  made  :  —  to  the  first,  second  and  third 
doubts,  in  the  negative. 

On  the  same  day,  after  the  matter  had  been  laid  before  our  Holy  Father  Pope 
Leo  XIII,  His  Holiness  approved  and  confirmed  the  decisions  of  the  Cardinals  ». 
A".  R.  th.,  XXIII,  p.  379  s. 

These  are  the  two  decrees  to  which  the  supporters  of  the  rigorous  opinion 
appeal.  The  other  Roman  documents  dealing  with  this  controversy,  either  simply 
refer  to  the  above,  like  the  answer  of  the  S.  Penit.  of  4  April  1887  {N.  R.  th., 
XIX,  391  s  ),  or  can  be  taken  in  either  sense,  like  the  decree  of  the  C.  S.  O.  of  36 
July  1887  (N.  R.  th.,  XXIV,  p.  373),  where  it  is  said  :  <  It  is  necessary  to  urge 
most  strongly...  the  judge  in  question  {&  President  de  Tribunal,  v/ho  asked  for 
directions  to  be  followed  in  the  matter  of  pronouncing  divorce)  to  retain  his 
office,  while  keeping  to  the  restrictions  laid  down  by  the  Holy  See,  and  to  the 
precautions  suggested  by  prudence  ».  The  A'.  R,  th.,  XXIII,  p.  667  and  XXIV, 
p.  376  s.  gives  the  interpretation  of  this  decree. 

I.  Thus  the  solutions  given  for  France  on  the  one  hand,  and  for  Belgium  on 
the  other,  do  not  involve  a  diversity  of  doctrine,  but  simply  of  discipline,  as  the 
minister  Renkin  rightly  observed  in  the  Belgian  Chambers,  23  Nov,  1904.  Cf. 
les  Annates  Parlementaires.  —  Chambre  des  Representants,  1904-1905,  p.  93,  and 
cf.  p.  63,  where  Mr.  Hymans  refers  to  this  pretended  contradiction. 


390  CIVIL  DIVORCE 

BuccERONi  (•),  Baudier  ('),  Aertnys  C),  Rosset  (*),  Plan- 
chard  (*),  Gasparri  (*),  and  Lavialle  (').  To  these  may  by  added 
the  Confcreniiac  Romanae  of  1899  (*).  The  other  opinion  is  maintain- 
ed by  Right  Rev.  Dr.  Waffelaert  ('),  Ballerini-Palmieri  (*°), 
Lehmkuhl(*'),  Grandclaude  (**),  De  Becker  ("),  Genicot-Sals- 
MANS  (•*),  Leitner  ('»),  Bovens  ("),  Marc  ("),  Theol.  Mechl.  (*"), 


1.  O.  c,  11,  p.  983,  and  in  the  Enchir.  Mormle,  p.  aig  s.  ;  also  in  the  SuppUm. 
ad  Promptatn  Bibliothccam  Lucii  Ferraris,  1899,  under  Divortiutn. 

2.  N.  /?.  <A.,XVm,  P.331SS. 

3.  Theol.  Moral.,  II,  n"  53a,  quaer.  3. 

4.  0.  c,  VI,  no  4085  ss. 

5.  N.  R.  th.,  XVni,  p.  473  ss.  and  especially  p.  500,  where  he  declares  that  it 
is  never  lawful  for  a  judge,  at  least  in  France,  to  pronounce  a  divorce  for  any 
cause  whatever;  though  he  does  not  admit  the  intrinsic  malice  of  the  act. 

6.  O.  c,  II,  no  1348,  where  he  says  that  he  inclines  to  the  rigorous  opinion. 
Thus  also  in  the  edition  of  1904,  no  1554. 

7.  O.  c,  p.  91  ss.,  compare  with  p.  77. 

8.  Gasparri,  o.  c,  II,  n©  1243  :  c  Dum  casus  conscientiae  discuteretur  Romae 
in  ecclesia  S.  ApoUinaris,  die  11  Martii  1889,  viri,  qui  mentem  S.  C.  Inq.  optime 
perspectam  habebant,  publice  affirmarunt  S.  C.  hoc  dccreto  (27  Maii  1886)  sen- 
tentiam  divortii  civilis  damnavisse  tanquam  intrinsece  illicitam  >. 

9.  Cooper.,  p.  96  ss.  ;  cf.  the  N.  R.  th.,  XIV,  XVI,  XVU,  and  XVIU. 

10.  O.c.p.  390-397. 

11.  O.  c.  II,  no  701,  in  note. 

13.  O.  c,  p.  8  s.,  where  he  proposes  another  interpretation  of  the  decrees  of  the 
Holy  See,  especially  of  those  of  35  June  1885  and  37  May  1886.  He  thinks  that  the 
Holy  See,  in  the  former  decree,  taught  the  lawfulness  of  pronouncing  divorce 
under  the  stipulated  conditions,  and  that  in  the  following  year  it  only  reprehend- 
ed such  an  act  in  the  same  measure,  that  is  to  say,  in  so  far  as  the  required 
conditions  were  not  fulfilled.  The  decree  of  1885  requires  two  conditions,  while 
the  consultation  of  1886  inserts  only  one,  and  omits  that  which  requires  the 
functionary  to  declare  publicly  that  the  regulating  of  marriage  belongs  exclus- 
ively to  the  Church.  «  La  decision  du  27  mai  (1886)  ^carte  une  application  tron- 
qu^e  et  abusive  de  la  declaration  g6n6rale  du  35  juin  {1885)  ». 

13.  DeMatr.,  p.  436  ss. 

14.  O.  c,  II,  no  561. 

15.  O.c,  p.  634  s. 

16.  O.  c,  p.  34  ss. 

17.0.  c,  II,  no  2136.  Lavialle,  o.  c,  p.  51  s.,  says  of  Marc,  that,  after  having 
maintained  the  broader  opinion  before  the  decree  of  1886,  he  then  abandoned  it, 
but  adopted  it  again  after  the  rescript  to  the  Bishop  of  Lu9on. 

18.  O.  c,  no  183  ss.  ;  cf.  also  the  Quaestiones  in  Conf,,  1898,  p.  53  ss. ;  La  Vic 
diocesaine  Docummta,  1913,  p.  55  ss. 


CIVIL  DIVORCE  391 

BeSSON  (*),     COLLAT.    TORNAC.    (*),    SaLSMANS    ('),    ReVUE    PRAT. 

d'apol.  (*)  Noldin(-).   Finally,  Feye   (*),  Vlaming  C),  AllI;- 
GRE  (*),  and  De  Luca  (')  are  undecided. 

An  objective  examination  of  the  question  and  arguments  drawn  Conclusion. 
from  authority  lead  us  to  the  following  conclusion  :  Until  the  Holy 
See  has  spoken  more  clearly,  there  is  no  need  to  look  upon  the 
declaration  of  a  judge  in  authorising  divorce,  and  the  action  of  a 
municipal  officer  in  pronouncing  it,  as  intrinsically  evil  ;  in  parti- 
cular, as  far  as  Belgium  is  concerned,  we  cannot  condemn  the 
functionaries  who  act  thus  whenever  their  office  requires  it  of 
them,  provided  they  avoid  giving  scandal. 

Fifth  Corollary. 

2/5. 

A.  A  petition  for  civil  divorce  on  the  part  of  a  Catholic,  who  is  5.  Petition  for 

indissolubly  united  in  a  valid  marriage,  does  not  appear  to  be  inirinsi-  ^*^'     ^""oru  . 
cally  evil,  hut  merely  unseemly  ;  so  that,  apart  from  special  circumstan- 
ces and  the  positive  prohibition  of  the  Church,  it  may  be  justifiable  at 
times,  though  rarely  so. 

B.  We  are  of  opinion  that  the  like  holds  good  for  the  counsel /or  the 
petitioner. 

Explanation  and  demonstration. 

1.  The  action  of  a  Catholic  in  petitioning  for  a  divorce  is  not,  «>*  on  the  part 
as  we  have  already  shown,  intrinsically  evil  6y  reason  of  its  object,      or  wife, 
nor  is  it  so,  by  reason  of  any  inseparable  and  incompensable  circum- 
stance. 

If  the  reader  will  refer  to  what  we  have  said    above,  he  will     is  not  an 
easily  see  that  there  is  here  no  question  oi perverse  intention  ;  it  is   sically  evil, 
supposed  that  the  petition  is  n()t  made  with  the  intention  of  marry- 
ing again  ;  neither  is  there  any  immediate  co-operation  in  the  sin 
of  another.  There  may  be  some  indirect  scandal,  but  a  suitable 
declaration  is  capable  of  removing  that  to  a  great  extent. 


I. 

R. 

th.fr.,  1905,  p. 

371  ss. 

2. 

Year  1908,  p.  591 ; 

5S. 

3- 

0. 

c.,p.  43  ss. 

4- 

T. 

XI  (Jan.  1911), 

P-  531  s. 

5- 

Siimma  theol.  mar. 

,  III,  1908, 

n»  673  ss, 

6. 

De 

Imp.,  no  584,  5, 

7- 

0. 

c,  II,  n"  598. 

8. 

0. 

c,  I,  p.  3i8  ss. 

9- 

0. 

c,  no  1058. 

392 


CIVIL  DIVORCE 


there  is 
sometimes, 


though 

rarely, 


but  merely        Again,  there  is  nothing  more  than  material  mediate  co-operation 
unseemly,     -^  ^j^^  contingent  sins  of  the  other  party,  and  co-operation  in  the 
evil  effects  of  the  law  ;  thus  the  question  is  reduced  to  one  of  the 
existence  of   a    proportionate  cause  justifying  such    co-opera- 
tion. 
on  account  of     1.  In  countries  where  the  civil  law  does  not  admit  simple  corporal 
and  ^co^tera-  ^^P^^^^^^on,  this  cause  is  not  very  hard  to  find.  Divorce  is  then 
tion ;  to  legi-  the  sole  means  of  legitimating  in  the  civil  law  separation  amensa 
'     et  toro,  and   of  avoiding  disagreeable   legal   consequences  ;   but 
there  must  first  be  a  declaration  of  the  Bishop  permitting  the 
separation. 

2.  In  other  countries  : 

a/  Generally  there  is  no  sufficiently  urgent  reason  to  justify  a 
petition  for  divorce  rather  than  fot  separation.  The  desire  to  avoid 
the  inconveniences  of  separation,  as  being  relatively  greater  than 
those  of  divorce,  does  not  ordinarily  suffice  to  outweigh  the 
deplorable  consequences  of  the  latter. 

To  be  precise,  we  maintain  that  it  is  not  sufficient  to  allege  the 
provision  of  art.  310,  which  permits  the  guilty  party,  against  whom 
a  decree  of  separation  has  been  pronounced,  to  have  this  convert- 
ed into  a  decree  of  divorce  after  an  interval  ot  three  years  ;  for,  in 
this  case  the  loss  to  the  innocent  party  is  not  so  considerable, 
seeing  that  the  provision  of  art.  299,  in  favour  of  the  party  obtain- 
ing the  divorce,  is  not  applicable  under  the  circumstances.  See 
above,  n°  207. 

Moreover,  it  is  not  sufficient  that  the  simply  separated  wife  is 
at  a  certain  disadvantage,  in  that  she  is  under  a  legal  incapacity 
that  prevents  her  from  acquiring  and  alienating  possessions  with- 
out the  consent  of  her  husband  ;  the  less  so,  as  art.  218  empowers 
the  judge  to  supply  the  want  of  such  consent. 

Finally,  as  a  general  rule,  we  can  in  no  way  consider  as  suffi- 
ciently grave  the  disadvantage  arising  from  art.  312,  paragraph  i, 
which  regards  the  children  born  of  a  separated  wife  as  those  of  her 
husband.  No  doubt  this  provision  lends  itself  to  some  very  vexa- 
tious consequences,  but  they  may  for  the  most  part  be  avoided, 
even  under  the  Civil  Code  of  Belgium,  since  paragraph  2  of  the 
same  art.,  as  we  have  pointed  out  in  n°  170,  gives  the  husband  the 
power  of  repudiating  such  children. 


reason 


CIVIL  DIVORCE  393 

The  answers  of  the  S.  Penitentiaria,  of  5  Jan.  1887  (•),  14  Jan. 
1891  (*),  16  Apr.  1891  ('),  and  7  Jan.  1892  (*),  though  they  do  not 
strictly  prove  it,  yet  support  what  we  have  said  above. 

b/  Exceptionally,  however,  especially  in  Belgium,  it  would  seem    a  sufficient 
that  there  may  be  such  an  accumulation  of  circumstances  as  would 
suffice  to  justify  a  petition  for  divorce. 

We  have  particularly  in  view  the  davger  of  intrusion  of  adulterine 
children,  in  cases  in  which  such  danger  cannot  be  removed  by 
means  of  the  provision  contained  in  art.  312,  paragraph  2. For,  in 
order  that  the  husband  may,  in  conformity  with  the  Belgian  law, 
repudiate  the  child  of  his  separated  wife,  it  is  necessary  for  him  to 
prove  that  «  pendant  le  temps  qui  a  couru  depuis  le  300^  jusqu'au 
180^  jour  avant  la  naissance  de  cet  enfant...  il  etait  dans  I'impossi- 
bilite  physique  de  cohabiter  avec  sa  femme  >  ;  but  the  proof  of  this 
may  be  rendered  impossible  by  the  wife's  fraudulent  and  secret 
frequentation  of  her  husband's  house. 

We  are  aware  tha.t  the  very  case  of  which  we  are  speaking  has 
been  submitted  to  the  S.  Penitentiaria  and  answered  in  the  more 
rigorous  sense,  on  Jan.  7"^,  1892.  But,  in  the  first  place,  it  is  quite 
possible  that  this  answer  applies  only  to  France,  where  the  dan- 
ger of  this  intrusion  of  adulterine  children  is  more  easily  obviated 
than  in  Belgium,  owing  to  the  law  of  1850  ;  there  also,  as  we  have 
already  observed,  the  Holy  See  may  have  taken  into  account  the 

1.  To  the  proposed  case  of  a  woman  who  desired  to  get  a  divorce,  because  she 
could  not  otherwise  obtain  a  public  office,  which  she  needed  as  a  means  of 
livelihood,  the  following  answer  is  given  :  «  the  woman  in  this  case  must  be 
advised  that  she  is  bound,  sub  gravi,  to  refrain  from  seeking  a  divorce  ». 
N.  R.  th.,  XIX,  p.  74. 

2.  A  woman  is  refused  permission  to  petition  for  a  divorce  in  order  that  she 
may  thereby  acquire  the  right  of  managing  her  property,  and  so  avoid  serious 
difficulties.  N.  R.  th.,  XXHI,  p.  671. 

3.  In  like  manner,  this  permission  is  not  granted  to  a  woman  who  wishes  to 
obtain  a  divorce  in  order  that  she  may,  before  the  civil  law,  assume  the  charge 
of  a  niece  who  has  been  deserted  by  her  father.  N.  R.  th.,  XXIII,  p.  677. 

4.  Finally,  it  is  declared  unlawful  to  proceed  to  divorce,  even  where  it  is 
desired  by  a  husband  whose  wife  is  living  in  adultery,  and  who,  being  enceinte 
by  some  other  man,  returns  from  time  to  time  to  her  husband's  house  for  the 
purpose  of  making  it  impossible  for  the  husband  to  repudiate  paternity  ;  and 
hence,  in  the  case  in  which  a  husband  seeks  divorce  «  pour  pouvoir  r^pudier 
cette  paternity,  pour  empecher  I'introduction  de  nouveaux  batards  dans  sa 
famille  ..  N.  R.  th.,  XXIV,  p.  528  ss. 


394  CIVIL  DIVORCE 

particular  circumstances  of  that  country,  and  have  acted  with 
greater  severity  in  consequence.  In  the  second  place,  the  answer 
of  the  S.  Penitentiaria  is  limited  to  the  particular  solution  of  a 
given  case  ;  and  the  same  Congregation,  some  months  later,  30 
June  1892,  thought  it  sufficient  to  answer  :  «  Let  the  petitioner 
consult  approved  authors  »  (*). 

Further,  the  majority  of  the  authors  quoted  above  in  favour  of 
our  first  thesis,  support  us  equally  in  the  present  instance ;  and 
we  know  that  many  of  the  episcopal  chancelleries  of  Belgium 
have  permitted  recourse  to  be  had  to  divorce  in  cases  where  the 
imminent  danger  of  the  intrusion  of  adulterine  children  could  not 
be  otherwise  removed  ;  and  even,  on  one  occasion  at  least,  in  the 
case  of  a  wife  of  irreproachable  character  and  of  good  position, 
who  had  been  ruined  by  the  extravagance  of  her  husband,  and 
whose  parents  refused  to  assist  her,  unless  a  divorce  were  obtain- 
ed, and  the  spendthrift  thus  deprived  of  any  further  power  over 
the  wife's  property. 

In  practice,  however  great  reason  there  may  be  for  bringing  an 
action  for  divorce,  no  Catholic  could  lawfully  bring  such  an  action 
before  the  civil  courts,  without  having  first  consulted  the  eccle- 
siastical authorities.  Moreover,  if  the  bill  proposed  by  Al.  Braun 
and  already  adopted  by  the  Belgian  Senate,  16  March  191 1,  becom- 
es law,  the  particular  difficulties  of  which  we  have  just  spoken 
will  practically  disappear.  See  n°^  210  and  170. 

in  like  man-  2.  Where  it  is  permissible  for  a  married  person  to  petition  for 
^ba^t  Tthg"  ^  divorce,  it  is  also  lawful  for  barristers  to  plead  their  case.  But, 
barrister,  apart  from  this  hypothesis,  it  is  not  lawful  for  them  to  undertake 
divorce  cases,  since  on  the  one  hand  they  are  free  to  refuse  the 
cases  offered,  and,  on  the  other  hand,  the  consequent  loss  of 
fees  is  in  no  way  proportioned  to  the  gravity  of  the  evils  that  have 
to  be  avoided. 

This  prohibition  must  be  observed  even  when  it  is  quite  certain 
that  the  parties  do  not  intend  to  make  an  ill  use  of  their  divorce 
and  marry  again.  For,though  in  such  a  cause,  the  counsel  does  not 
co-operate  in  adultery  or  concubinage  on  the  part  of  the  interest- 
ed parties,  he  nevertheless  does  co-operate  in  the  carrying  out 
of  the  law,  and  therefore  in  the  evil  consequences  that  it  entails 

I.  N.  R.  th.,  XXIV,  p.  539  s. 


CIVIL  DIVORCE  395 

upon  society  ;  and  this  is  a  matter  of  the  greatest  moment. 
Undoubtedly,  if  they  refuse  such  cases,  others  less  conscientious 
will  accept  them  and  pocket  the  fees  ;  consequently  the  effective 
co-operation  of  Catholic  barristers  is  not  so  great  as  might,  at 
first  sight,  appear,  and  therefore  a  reason  that  would  justify  them 
in  accepting,  might  be  the  more  easily  found.  Nevertheless,  there 
is  no  denying  that  there  is  co-operation,  and  co-operation  of  such 
a  kind  as  no  consideration   of  private  gain  can  justify. 

There  is,  however,  room  for  an  exception  in  favour  of  the  sta- 
giaires,to  whom  the  Bureau  des  consultations  gratuites  assigns  a  «  pro 
Deo  »  of  this  kind.  If  the  circumstances  are  such  that  they  cannot 
refuse,  and  their  professional  duty  imposes  upon  them  one  of 
these  cases,  they  may,  after  a  serious  attempt  to  avoid  the  obli- 
gation, undertake  it ;  but  they  must  then  confine  themselves  to  a 
simple  statement,  before  the  court,  of  the  legal  grounds  on  which 
the  petition  for  divorce  is  based,  while  declaring  that  it  is  contrary 
to  Cathohc  principles  (*). 

In  conclusion,  then,  one  can  follow  in  practice,  at  least  in  Conclusion. 
Belgium,  and  saving  any  instruction  ot  the  Holy  See  to  the  con- 
trary, the  opinion  which  holds  as  lawful,  all  the  requisite  condi- 
tions being  fulfilled,  a  petition  for  divorce,  whether  on  the  part  of 
the  husband  or  wife,  or,  on  their  behalf,  on  the  part  of  their 
counsel. 


I.  Equity  demands  that  members  of  the  Conseilde  discipline  and  of  the  Bureau 
des  consultations  gratuiUs  should  respect  liberty  of  conscience  in  the  distribution 
of  cases,  and  not  assign  to  Catholics  cases  which  they  cannot  conscientiously 
undertake,  especially  as  there  are  plenty  of  barristers  who  have  no  scruple 
about  doing  so.  To  the  praise  of  our  courts  be  it  said  that  in  general  their  prac- 
tice on  this  point  is  quite  satisfactory. 

Nevertheless  there  exist  some  decisions  opposed  to  this  spirit  of  equity,  deci- 
sions which  may  indeed  be  reversed,  but  which,  as  things  now  stand,  might  be 
employed  to  compel  all  stagiaires  to  plead  in  cases  of  divorce.  Such  are  the 
decisions  of  the  Court  of  Brussels  :  Cour  d^Appel,  23  Dec.  1875  (J.  Des  Cres- 
soNNiERES,  Decisions  du  conseil  de  I'ordre  des  avocats  pres  la  cour  de  BruxelUs, 
BruxelJes,  1907,  p.  38)  and  rg  Jan.  1876  (Pandectes  Beiges,  under  Bureau  des  Con- 
sultations gratuites)  :  «  Un  avocat  ne  peut  pas  se  pr6valoir  de  considerations 
tenant  k  ses  convictions  religieuses,  pour  refuser  de  se  charger  de  la  defense 
d'une  cause  (juste  d'apres  les  lois  en  vigueur)  qui  lui  a  ete  distribute  par  le 
bureau  des  consultations  gratuites  ». 


396  civil  divorce 

Sixth  Corollary. 

As  regards  the  civil  re-marriage  of  the  divorced  party  : 

An  opinion  which  appears  probable  holds  as  justifiable  the  act  of  the 
municipal  officer  who  civilly  unites  persons,  one  of  whom  is  in  the  eyes  of 
ike  Church  validly  married  to  another,  hut  is  divorced  from  that  party 
before  the  civil  law. 

Explanation  and  demonstration. 

6. The  lawful-      It  is  clear  that  in  this  case  the  co-operation  given  by  the  civil 
"fthe  syndk;,  functionaries  is  more  effective  than  in  the  two  which  we  have 

who  civilly   been  dealing  with,    and  that  it  has  a  more  direct  bearing  on  the 
unties  «.f.,,  .,  .  ,.., 

divorced     Sins  01  the  pseudo-married  parties  ;  consequently  it  is  the  more 

*  "^'  difficult  to  find  sufficient  and  proportionate  reasons.  Nevertheless, 
on  the  one  hand,  it  would  be  hard  to  condemn  indiscriminately  all 
Catholic  functionaries  who  have  to  discharge  this  office,  and  to 
make  them  choose  between  their  conscience  and  their  profession  ; 
while,  on  the  other  hand,  if  all  were  compelled  to  resign,  such  a 
course  would  result  in  great  injury  to  the  general  welfare. 
appears  pro-  Moreover,  if  they  could  not  apply  the  law  in  the  present  case, 
neither  could  they  in  that  of  persons  who  are  incapable  of  con- 
tracting a  religious  marriage  by  reason  of  some  diriment  impe- 
diment ('). 

"We  believe,  then,  that  the  more  indulgent  opinion  is  probable, 
strengthened  as  it  is  by  the  support  of  authors  of  note,  like  Gennari 
and  BouDiNHON,  in  their  Consultationes,  2"<^  Part,  II,  p.  246  ;  De 
LucA,  o.  c,  n°s  1047  s.  ;  Schnitzer,  o.  c,  p.  77  s.  ;  Bovens,  o.  c, 
36-40 ;  Gbnicot-Salsmans.o.  c,  II,  n°  562  ad  4'"  ;  Lehmkuhl,  o.  c, 
II,  n°  725,  in  note  ;  Noldin,  Summa,  II,  n°  680 ;  Wernz',  o.  c,  n° 
208,  p.  339  s.  —  Gasparri,  o.  c,  ed.  1904,  n"^  1530  ss.,  is  rather 
favourable  ;  as  to  Hollweck,  o.  c.  p.  77,  he  recognises  that  our 
opinion  is  applicable  in  practice. 

I.  On  the  assistance  of  the  municipal  officer  at  the  marriage  of  parties  in- 
capable of  contracting  a  canonically  valid  union,  cF.Santi,  in  I. IV  Deer.,  Tit  III, 
n.  55  s.,  who  thinks  such  co-operation  quite  lav/ful.  Gasparri,  o.  c,  II,  n"  1230, 
says  on  this  point  :  «  Quanquam  Santi  non  citat  (in  favorem  suae  theseos)  S. 
Poenitcntiariam,  tamen  nonnuUi  suspicantur  eum  hanc  doctrinam  ex  jurispru- 
dentia  ipsius  S.  Poenitentiariae  desumpsisse,  cujus  fuit  per  plures  annos  cano- 
nista  et  tandem  regens  per  paucos  menses  ante  mortem  ». 


CIVIL  DIVORCB  397 

Answers  given  by  the  Holy  See  to  the  contrary  effect  ('),  may- 
be understood  in  a  way  analogous  to  the  interpretation  we  have 
already  given  in  several  instances,  according  to  which  they  may 
be  taken,  not  as  deciding  the  question  of  principle  in  relation  to 
the  intrinsic  malice,  but  as  simply  pronouncing  unlawful  an  act  of 
this  kind,  in  a  certain  country  and  on  account  of  urtain  particular 
circumstances,  and  prohibiting  it  by  a  positive  defence. 

We  may  remark,  in  conclusion,  that  the  priest  who  holds  as 
certain  the  more  rigorous  opinion,  in  practice  cannot  do  better 
than  leave  the  municipal  officer  in  good  faith, and  refer  to  the  Ordi- 
nary any  who  consult  him  on  the  subject. 

Scholion.  Post  factum,  quando  scil.  detegitur  pcenitens  divor- 
tium  civile  a  matrimonio  canonice  valido  illicite  impetrasse,  quo- 
modo  tractandus  est  a  confessario  ? 

1 .  Si  non  coniraxit  nee  contrahere  intendit  novum  matrimonium  civile: 
oportet  ut  poenitens  de  peccato  commisso,  in  quantum  fuerit  for- 
male,  sincere  doleat ;  prseterea  debet,  si  fieri  potest,  cum  derelicta 
comparte  reconciliari  ac  consortium  maritale  reinstaurare  (*) ; 
quae  reconciliatio  si  impossibilis  aut  inopportuna  judicetur,  tene- 
tur  poenitens  scandalum  forte  provocatum  reparare  ac  monere 
parochum  de  separatione  tecti  instituta,  et  per  eum  sententiam 
judicis  ecclesiastici  obtinere,  attentis  principiis  propositis  sub 
n.  155  et  156. 

Quibus  praestitis,  nihil  jam  obstat  quominus  ad  sacramenta, 
etiam  publice,  admittatur  poenitens,  ac  imo  potest  absolvi  seria 
facta  promissione  de  dictce  obligationis  futura  executione. 


1.  Such  is  the  decree  of  the  C.  S.  O.  of  1886,  quoted  above, under  C,  fourth  Co- 
rollary; likewise  the  decree,sent  in  the  name  of  the  Card.  Grand  Penitentiary  by 
the  Substitute, 28  Nov.  1883:  «  Having  laid  before  His  Eminence  the  Grand  Peni- 
tentiary the  case  of  the  municipal  officer,...  who  in  virtue  of  his  office  was  requir- 
ed to  assist  at  the  civil  marriage  of  a  person  already  married  in  the  eyes  of 
the  Church,  I  have  to  make  known  to  you,  by  order  of  the  same,  that  the  officer 
in  question  could  not  in  any  way  lend  himself  to  an  act  so  contrary  to  the 
sanctity  of  marriage.  Consequently.whatever  the  circumstances  of  the  case  may 
be,  he  is  bound  to  abstain  entirely  from  such  assistance,  even  if  his  position 
depends  upon  it  ».  N.  R.  th.,  XX,  p.  399  s. 

2.  Sub  n  205  et  307,  notavimus  in  Gallia  et  in  Belgio  non  prohiberi  conjuges 
divortio  separatos  quominus  iterum  civiliter  copulentur,  salva  nova  celebratione. 
Hoc  obtinet  in  Gallia  inde  ab  anno  1884,  quando  lex  divortii  est  reintroducta  ;  in 
Belgio,  in  hunc  sensum  moderatus  est  art.  Cod.  Civ.  295,  anno  1906. 


398  CIVIL  DIVORCE 

2.  Si  ad  alia  vota  iransire  aitentaverit,  novo  inito  matrimonio  civili 
cum  Urtia  persona  : 

Optanda  solutio  foret  ut,  impetrato  divortio  civili  ab  hoc  altero 
pseudo-vinculo,  reconcilietur  cum  legitima  comparte  cum  eaque 
vitae  conjugalis  consortium  reassumat  (*). 

Quodsi  ad  hanc  solutionem  deveniri  nequeat,  urgendus  est  poe- 
nitens  ut  saltem,  reparato  scandalo,a  concubinatu  recedat,  etiamsi 
locus  non  sit  divortio  civili  obtinendo  (*)  ;  nee  potest  ad  sacra- 
menta  public^  admitti  antequam  concubinatum  efficaciter  abru- 
perit,  imo  ad  ipsam  absolutionem  non  sufficeret,  regulariter  et 
extra  casum  urgentem,  sola  promissio  de  futura  concubinatus 
abruptione. 

Abrupt©  autem  concubinatu  ac  reparato  scandalo,  manet  ut 
pcenitens,  juxta  dicta  sub  1.,  moneat  parochum  et  sententiamjudi- 
cis  ecclesiastici  obtineat  super  separatione  tecti ;  quibus  peractis 
potest,  supposita  resipiscentia,  ad  sacramenta  admitti  ;  etiam 
potest  sacramentaliter  absolvi  sub  promissione  hanc  clausulam 
injunctam  exequendi. 

Porro  supponitur  pcenitens  non  incurrisse  excommunicationem, 
cum  hujus  absolutio  absolutionem  sacramentalem  praecedere  de- 
beat  ;  posset  nempe  fieri  quod,  ex  facto  novi  attentati  matrimonii 
excommunicationem  contraxerit,  sive  vi  dispositionis  juris  com- 
munis ('),  sive  vi  dispositionis  juris  particularis  (*). 


1.  Huic  novae  unioni  inter  conjuges  divortio  disjunctos  adhuc  locus  est  coram 
lege  civili  in  Bclgio,  postquam  novum  successit  matrimonium  et  alterum  divor- 
tium  ;  nonita  in  Gallia.  Cf.  1.  c,  et  CoUat.  Brug.,  t.  XI,  p.  318  ss. 

2.  Non  obstat  huic  concubinatus  abruptioni  existentia  vinculi  civiliter  validi : 
vult  quidem  lex  civilis  ut  cohabitent  conjuges,  sed  in  praxi  vix  unquam  ad  coha- 
bitationem  urgebit  judex.  Cf.  n.  150,  cum  nota. 

3.  Potest  fieri  ut,  posito  anathemate  contra  illos  qui  putant  licere  christianis 
duas  uxores  habere  (C.  Trid.,  Sess.  XXIV,  can.  a),  hujusmodi  pcenitens  haeresim 
incurrerit,  ideoque  excommunicationem  haeresi  adnexam. 

4.  Ita  in  Cone.  Baltim.  Ill  (a.  1884),  n.  124,  indicitur  excommunicatio  latae  sen- 
tentiae  Ordinario  reservata  contra  «  conjuges  qui,  divortio  civili  obtento,  novum 
matrimonium  attentare  ausi  fuerint  ». 


THE  REGULATION   OF  MARRIAGE  399 

Section  IV 

THE  REGULATION  OF  MARRIAGE. 

2/5. 

Preliminary  note.  The  regulation  of  marriage  implies  the  exer-     What  the 

cise  of  legislative,  judiciary  and  coercive  power  ;  it  extends  to  the  ^'S^^'^^^  °f 
contract  as  such,  as  well  as  to  the  permanent  bond  created  by  it.  implies. 
The  legislative  power  mtervenes  for  determining  the  form  of  the 
contract,  for  establishing  impediments,  whether  diriment  or  impe- 
dient,  and,  within  the  limits  laid  down  above,  for  deciding  what 
are  the  causes  of  dissolution  or  of  corporal  separation.  The  judicial 
power  has  to  pronounce  upon  the  validity  or  nullity  of  matrimo- 
nial contracts, as  well  as  upon  the  reality  and  gravity  of  the  causes 
of  dissolution  or  of  separation.  The  coercive  power  has  for  its  pro- 
vince the  prohibition  of  marriage,  even  under  pain  of  nullity  in 
punishment  of  certain  offences,  or  the  prohibition  of  the  use  of 
marriage  ;  and,  in  addition  to  this,  the  enforcing  of  respect  for  the 
obligations  arising  from  marriage. 

Paragraph  I.  THE  REGULATION  OF  MARRIAGE  OF  BAPTIZED 

PERSONS. 

I.  Rights  of  the  Church. 

Proposition.  The  regulation  of  the  marriage  of  baptized  persons,    Tlieregul*^ 

particularly  the  power  of  establishing  impediments,  belongs  exclusively  ^»o»  ofmarri- 

upe  of 
to  the  Church  and  is  its  proper  right,  in  virtue  of  the  Divine  Will,  and  baptized  per- 

in  consequence  of  the  nature  of  Christian  marriage.  exdusimhfto 

We  will  prove  these  statements  one  by  one.  the  Church, 

First  Statement  :  The  regulation  of  the  marriage  of  baptized  per- 
sons belongs  to  the  Church  alone,  to  the  exclusion  of  the  civil  power. 
First  proof.  Marriage  validly  contracted  between  baptized  per- 
sons is  a  sacrament  inseparable  from  the  contract  and  making  one 
whole  with  it.  It  follows  from  this  that  any  regulating  of  the  con- 
tract at  the  same  time  touches  the  sacrament  ;  it  is  impossible 
to  impose  conditions  affecting  the  validity  of  the  contract  without 
thereby  extending  them  to  the  reception  of  the  sacrament  ;  no 
one  can  be  incapacitated  from  the  contract,  without  at  the  same 
time  being  incapacitated  from  the   ministry   of  the  sacrament. 


400  THE  REGULATION   OF  MARRIAGE 

It  is  true,  as  we  shall  presently  see,  that  the  exercise  of  juris- 
diction over  the  matrimonial  contract  of  baptized  persons,  and 
in  particular,  the  establishment  of  impediments,  does  not  modify 
the  sacrament  either  in  its  matter  or  in  its  form,  since  the 
sacrament  is  present  only  when  the  contract  is  valid  ;  but  it 
is  equally  true  that,  in  view  of  the  identity  of  the  contract  and 
the  sacrament,  one  cannot  regulate  the  one  without  interfering 
with  the  other  (*). 

Now,  it  is  quite  evident  that  the  administration  of  the  sacra- 
ments naturally  belongs  to  the  Church  alone,  to  the  entire  exclu- 
sion of  the  civil  power  :  «  To  decree  and  ordain  about  the  sacra- 
ments is,  by  the  will  of  Christ,  so  much  a  part  of  the  power  and 
duty  of  the  Church,  that  it  is  plainly  absurd  to  maintain  that  even 
the  very  smallest  particle  of  such  power  has  been  transferred  to 
the  civil  ruler  ».  E,ncycl.  Arcanum. 

Second  proof.  Moreover,  leaving  out  of  the  question  the  sacra- 
mental dignity,  marriage  considered  in  its  natural  character  is  a 
holy  thing,  not  essentially  and  intrinsically,  but  in  consequence  of 
the  end  to  which  it  is  directed.  For,  its  direct  and  immediate  object 
is  «  the  bringing  forth  of  children  for  the  Church,  fellow  citizens 
with  the  Saints,  and  the  domestics  of  God  »  (Enycl.  Arcanum)  (*), 
and  upon  the  right  ordering  of  it  (marriage),  ver}'  much  depends, 
which  immediately  concerns  the  common  spiritual  good  ('). 

1.  Carri^re,  o.  c,  I,  p.  399,  therefore,  is  at  fault  when  he  compares  the 
establishment  of  a  diriment  impediment,  invalidating  the  Christian  marriage 
contract,  to  the  corrupting  of  the  water  or  wine  for  use  in  Baptism  or  the 
Most  Holy  Eucharist,  as  if  the  one  affected  the  sacrament  no  more  than  the 
other.  Cf.  supra,  no  104;  Martin,  o.  c,  II,  p,  51  ss.,  where  he  fully  refutes  the 
argument  of  parity  adduced  by  Carriere. 

2.  «  Le  mariage  est,  dit-on,  I'entree  de  I'Etat  ;  il  est  bien  aussi  I'entr^e  de 
I'Bglise.  C'est  de  la  main  des  6poux  que  la  soci^te  civile  re9oit  ses  guerriers, 
ses  magistratsetges  juges  ;  mais  ce  sont  bien  eux  aussi  qui  donnent  a  I'Eglise 
ses  pretres,  ses  pontifes  et  tous  les  Chretiens,  qu'elle  conduit  par  la  pratique 
de  I'Evangile  a  la  vie  eternelle  ».  Thus  the  Author  of  the  pamphlet  :  Examen 
du  pOHvoir  legislatif  de  I'Eglise,  p.  116. 

3.  Ibidem,  p.  n6  s.  :  «  Des  mariages  mal  assortis  naissent  les  divorces  et  les 
dissensions  domestiques.  Mais  le  divorce  est  encore  plus  r^prouve  par  la  loi  de 
Dieu  que  par  la  loi  du  Prince  ;  la  discorde  n'est  pas  moins  opposee  a  la  charite 
chr^tienne  qu'd  I'harmonie  sociale.  Des  mariages  obscurs  et  clandestins  naissent 
la  bigamie,  I'abandon  des  Spouses  et  des  enfants  :  d^sordres  qui  desolent  I'Eglise 


THE  REGULATION  OF  MARRIAGE  40t 

If,  then,  marriage  is  a  sacred  thing,  as  Leo  XIII,  1.  c,  argues, 
«  it  ought  to  be  regulated  and  administered,  not  by  the  will  of  civil 
rulers,  but  by  the  divine  authority  of  the  Church,  which  alone  in 
sacred  matters  has  the  office  of  teaching  >.  It  is  true  that  marriage 
as  immediately  concerns  the  conservation  and  growth  of  civil  socie- 
ty ;  and  consequently,  speaking  in  the  abstract,  the  secular  autho- 
rity would  have  a  right  and  a  claim  to  the  regulation  of  Christian 
marriage,  apart  from  the  sacramental  dignity.  But,  taking  things 
in  the  concrete,  the  State  cannot  assert  its  right  against  the  higher 
right  of  the  Church.  It  is  necessary  that  the  State  should  give  way 
to  the  Church,  since  it  is  impossible  that  the  same  marriage  should 
be  regulated  by  two  different  powers,  independently  of  one  an- 
other ('). 

These  considerations  furnish  a  reply  to  the  objection  that  is  often 
made  against  the  exclusive  right  of  the  Church  over  marriage, 
apart  from  its  sacramental  nature.  Maj. :  The  civil  authority  can. 


autant  qu'ils  affligent  I'Etat.  Les  manages  incestueux  offensent  la  nature  ;  mais 
Dieu  est-il  moins  outrage  que  le  Prince  par  les  crimes  qui  outragent  la  nature  ? 
La  mauvaise  education  est  le  resultat  necessaire  des  mauvais  manages  ;  avec  de 
la  bonne  foi  on  convient  que  la  morale  souffre,  encore  plus  que  la  politique,  du 
vice  de  I'education.  L'Etat  pourra  faire  d'un  mauvais  mari  un  bon  soldat,  et 
meme  un  bon  general ;  mais  il  sera  toujours  un  mauvais  Chretien  ». 

I.  Otherwise  the  same  marriage  might  be  at  once  valid  and  invalid  ;  the  same 
parties  might  be  considered  by  the  spiritual  judge  as  lawfully  married  and  bound 
to  cohabitation,  and  by  the  lay  judge  as  unlawfully  united  and  subject  to  separa- 
tion. It  may  be  answered  that  the  parties  interested  have  only  to  take  into 
account  both  the  ecclesiastical  and  civil  impediments. Be  it  so  ;  but  what  are  they 
to  do,  when  the  two  authorities  prescribe  for  the  validity  of  the  contract  formali- 
ties that  mutually  exclude  one  another  ?  Cf.  Palmieri,  o.  c,  p.  268  ss. ;  Hbuser, 
o.  c,  p.  82-84 ;  Basdevant,  o.  c,  p.  40  s. 

The  possibility  of  this  dual  control  of  marriage  was  formerly  admitted  by 
certain  Authors  who  favoured  the  distinction  between  the  sacrament  and  the 
contract,  like  Carnere,  Gerbais  and  Ballet,  of  whom  we  shall  speak  below,  towards 
the  end  of  n"  219,  and  also  by  the  anonymous  author  of  the  pamphlet  Apologie  du 
mariage  chrHien  (p.  98  ss.  and  119  s.).  They  relied  on  the  hope  that  Christian 
Princes,  in  their  matrimonial  legislation,  would  conform  to  the  laws  of  the 
Church,  and  that  so  all  conflict  would  be  avoided.  Martin,  o.  c,  II,  p.  273-292, 
gives  a  lengthy  refutation  of  the  principle  of  duality. 


86 


401  TUB  REGULUTION   OF  MARRIAGE 

SO  long  as  it  does  not  infringe  on  the  natural  and  divine  law,  make 
laws  in  regard  of  everything  that  is  not  intrinsically  sacred,  and 
that  concerns  the  welfare  ot  civil  society.  Min.  :  But  this  is  the 
case  with  Christian  marriage.  Therefore. 

We  distinguish  the  major  :  If  it  is  a  question  of  something  that 
concerns  spiritual  welfare  directly,  and  temporal  welfare  only 
mediately,  and  through  the  former,the  proposition  is  false.  If  it  is 
a  matter  that  concerns  temporal  welfare  immediately,  two  hypo- 
theses are  possible  :  either  no  spiritual  interest  is  involved,  and 
then  we  concede  the  whole  ;  or  the  spiritual  is  as  directly  interest- 
ed therein  as  the  temporal  ;  and  then,  in  default  of  the  existence 
of  a  supernatural  society,or  when  the  two  powers  can  be  exercis- 
ed concurrently,  all  is  well;  but  if  there  is  a  supernatural  society, 
and  regulation  by  the  two  authorities  side  by  side  is  impossible, 
then  it  is  for  the  civil  authority  to  give  way. 

But,  if  Christian  marriage  immediately  concerns  the  welfare 
and  growth  of  civil  society,  it  no  less  immediately  concerns  the 
welfare  and  propagation  of  the  Church,  and,  as  we  have  said, 
in  this  case  the  concurrent  exercise  of  the  two  powers  is  impossi- 
ble. 

This  latter  argument,  considering  the  impossibility  of  dual  con- 
trol, holds  good  also  against  those  authors  who  deny  the  sacra- 
mentality  of  marriage,  or  insist  on  the  distinction  between  the 
contract  and  the  sacrament  ;  it  is  sufficient  that  they  should  not, 
with  the  civilists,  hold  the  marriage  contract  a  merely  secular  con- 
tract. 

This  is  the  formal  teaching  of  the  Sovereign  Pontiffs,  especially 
of  Pius  IX  in  the  Syllabus  (condemned  propositions  68  (')  and  71)  (*) ; 
of  Leo  XIII,  in  his  Encyclical  Arcanum,  in  his  Letter  to  the  Bish- 
ops of  Peru,  16  Aug.  1898  (yl«a/.  eccl,  1899,  p.  440),  and  to  the 
Bishops  of  Ecuador,  22  Dec.  1902  (Anal,  eccl.,  1904,  p.  281  )  ;  and 
of  Pius  X,  in  his  Letter  of  14  Nov.  1906  (Anal,  eccl.,  1907,  p.  53  s.). 


I.  «  The  Church  has  not  the  power  of  introducing  diriment  impediments  of 
marriage,  but  this  power  belongs  to  the  civil  authority,  which  ought  to  remove 
those  that  now  exist  ».  Denzinger,  o.  c,  no  1768. 

3.  «The  Tridentine  form  is  not  obligatory  under  pain  of  nullity  where  the  civil 
power  substitutes  another  in  its  place  and  decrees  that  marriage  should  hence- 
forth be  valid  under  it  ».  Ibid.,  n.  1771. 


THE  REGULATION   OF  MARRIAGE  403 

See  also  the  other  documents  quoted  by  De  Becker,  De  Matr., 

p.  30  ss.,  and  Feye,  De  Imp  ,  n°^  22-56. 

Second  Statement  :  This  exclusive  right  of  the  Church  is  its  as  its  proper 
proper  right,  belonging  to  it  in  virtue  of  the  Divive  Will,  and  in  con-  ^foUequencT 
sequence  of  the  very  nature  of  marriage.  oftheveryna- 

We  say  :  \.  It  is  its  proper  right,  that  is  to  say,  «  independently      riage ; 
of  the  consent  and  good  will  of  the  secular  authority  »  and  «  not 
having  its  origin  in  any  way  in  the  civil  power  >  (*). 

2.  This  right  belongs  to  it  in  consequence  of  the  very  nature  of 
marriage  :  that  is,  it  is  in  no  way  based  on  any  positive  law  of  the 
Church,  like,  for  instance,  «the  causes  and  civil  lawsuits  of  the  infe- 
rior clergy,  which  are  amenable  to  the  secular  courts,  but  which  a 
positive  law  of  the  Church  formerly  reserved  exclusively  to  the 
ecclesiastical  tribunal  »  (*).  On  the  contrary,  in  the  words  of 
Leo  XIII  (Arcanum),  it  is  clear  that  the  power  of  the  Church  over 
Christian  marriage  «  belongs  to  it  of  right,  and  is  in  no  way 
dependent  on  the  good  will  of  man,  but  on  the  will  of  its  divine 
Author  ». 

This  assertion  needs  no  proof  after  what  we  have  already  said  ; 
all  the  arguments  adduced  in  the  preceding  pages  demonstrate 
this  proper  right  of  the  Church,  and  show  its  dependence  on  the 
divine  law  and  the  very  nature  of  Christian  marriage.  The  Holy  See  is 
again  quite   explicit  in  this  regard  :  Pius  VI  condemns  the  sg*** 


I.  De  Becker,  De  Matr.,  p.  30  s. 

3.  Wernz,  o.  c,  n.  55  et  56,  ad  y^.  Cf.  Schnitzbr,  o.  c,  p.  46  ss.,  in  note  3, 
where  this  author,  though,  on  page  38  s.,  he  defends  the  identity  of  Christian 
marriage  and  the  sacrament,  contends  that  the  exclusive  right  of  the  Church 
«  im  positiven  Kirchenrecht  gelegen  ist,  das  aus  wichtigen  Griinden  jene 
Befiigniss  der  Kirche  reservirt  hat  >.  In  the  same  sense  also  formerly  wrote 
Sanchez,  o.  c,  1.  VII,  Disp.  Ill,  n.  3  ;  the  Salmanticenses,  o.  c,  c.  IX,  n.  14 
et  15,  together  with  others  mentioned  by  Wernz,  o.  c,  n.  56,  who  maintained 
that  the  regulation  of  Christian  marriage,  of  itself,  belonged  at  once  to  the 
Church  and  the  State,  but  in  such  a  way  that  the  Church  had  the  power  to 
reserve  to  itself  matrimonial  legislation,  to  the  exclusion  of  the  civil  State,  as 
in  fact  it  has  reserved  it ;  but  they  reduce  this  power  of  reservation  to  an  indi- 
rect power,  which  the  Church  here  exercises  by  withdrawing  marriage  from  the 
power  of  Princes  on  account  of  its  connection  with  the  sacrament.  Cf.  also 
Pontius,  o.  c,  1.  VII,  c.  II,  n.  3.  Against  the  fact  of  this  reservation,  see 
Gibert,  Tradition  oti  Histoire,  I,  p.  18  ss. 


404 


THE  REGULATION   OF   MARRIAGE 


218. 
so  that  the 


marriage 

legislative 

power. 


judicial 

power. 


proposition  of  the  Synod  of  Pistoja  (*),  and  Pius  IX  condemns  the 
69**^  proposition  of  the  Syllabus  (^). 

Third  Statement  :  This  regulation,  which  belongs  exchisively  to  the 
ha^oversuch  Church,  involves  the  exercise  of  the  legislative,  the  judicial,  and  the 
cotTcive  power. 

The  proofs  already  furnished  bear  directly  on  the  legislative 
power  ;  but  they  suffice  at  the  same  time  to  show  that  tho.  judicial 
power,  and,  when  occasion  requires,  the  coercive  power  belong 
likewise  and  exclusively  to  Rome. 

The  judicial  power  offers  no  difficulty.  «  It  is  a  universally 
accepted  axiom,  that  it  belongs  to  him  who  made  the  law  to  judge 
the  cases  that  arise  under  it,  or,  in  other  words,  that  he  who  has 
the  legislative  power  in  a  matter,  has  also  the  judicial  power  in  the 
same  »  ('). 

Moreover,  the  Council  of  Trent,  Sess.  XXIV,  can.  12,  teaches 
that  matrimonial  causes  c  appertain  to  the  ecclesiastical  judges  »; 
and  Pius  VI,  in  his  letter  to  the  Bishop  of  Motula,  declares  that 
this  is  to  be  interpreted  in  the  exclusive  sense  :  «  for,  he  says, 
«  the  terms  of  the  canon  are  so  general  as  to  comprise  and  include 
all  causes.  Moreover,  the  spirit  and  nature  of  the  law  are  of  a 
kind  to  exclude  any  exception  or  limitation  ;  for,since  such  causes 
are  subject  to  the  judgment  of  the  Church  alone,  solely  on  the 
ground  that  the  matrimonial  contract  is  really  and  properly  one 
of  the  seven  sacraments,  given  that  this  sacramental  quality  is 
common  to  all  matrimonial  causes,  they  all  consequently  fall  under 
the  exclusive  province  of  the  ecclesiastical  judges,  seeing  that  the 


I.  Denzinqer,  o.  c.  no  1559  :  «  Doctrina  Synodi  asserens,  ad  supremam  civilem 
potestatem  dumtaxat  originarie  spectare,  contractiii  matrimonii  apponere  impedi- 
menta ejus  generis,  quce  ipsum  nullum  reddunt  dicunturque  dirimentia...  ;  sub- 
jungens,  supposito  assensu  vel  conniventia  Principum,  poiuisse  Ecclesiam  juste  con- 
stituere  impedimenta  dirimentia  ipsum  contradum  matrimonii :  quasi  Ecclesia  non 
semper  potuerit  ac  possit  in  christanorum  matrimoniis  jure  proprio  impedimenta 
constituere,  quae  matrimonium  non  solum  impcdiant  sed  et  nullum  reddant 
quoad  vinculum...  canonum  3,  4,  9, 13,  Sess.  XXII,  Concilii  Tridentini  eversiva, 
haeretica  ». 

3.  «  The  Church  began  to  establish  diriment  impediments  in  the  course  of 
time.not  in  virtue  of  its  own  proper  right,  but  of  a  right  borrowed  from  the  civil 
power  »,  Ibid.,  n°  1769. 

3.  AlCHNER,  O.  C,  p.  564. 


THE  REGULATION   OF  MARRIAGE  405 

reason  given  applies  to  all  »  (').  Finally,  Pius  IX,  in  his  Syllabus, 
n"  74,  condemns  the  proposition  that  says  :  c  Marriage  and  betroth- 
ment  causes  belong,  of  their  nature,  to  the  civil  courts  ». 

Thus,  then,  if  the  doctrine  of  the  exclusive  judicial  power  of  the 
Church  with  relation  to  all  matrimonial  causes,  is  not  defined  as 
an  article  of  faith,  it  cannot  be  denied  without  error  or  temerity. 

The  coercive  power  is  the  natural  complement  of  the  legislative  and  coercive 
and  judicial  power,  since  coercion  is  sometimes  necessary  for  the  /"""^^ 
application  and  execution  of  the  laws  and  judgments,  and  for  the 
effective  safeguarding  of  public  morality  in  the  matter  of  marriage. 
We  must  accordingly  acknowledge  that  Rome,  having  the  regu- 
lation of  marriage,  has  also  the  right  of  dealing  with  offending 
spouses,  and  of  annulling,  for  instance,  marriages  contracted 
between  an  adulterous  husband  or  one  who  has  murdered  his 
wife,  and  the  accompHce  of  his  guilt  ;  the  right  also  of  punishing 
incest  by  prohibiting  the  use  of  marriage  ;  together  with  that  of 
constraining  married  persons  to  separate,  as  well  as  to  resume 
conjugal  intercourse. 

This  power  belongs  to  the  Church  alone  ;  but  the  secular  arm 
may  here  come  to  its  assistance,  within  the  limits  of  a  due  depen- 
dence and  subordination. 

219a. 

Fourth  Statement  :  The  regulation  of  marriage,  thus  understood,  together  with 
implies  for  the  Church,  and  for  it  alone,  the  power  of  establishing  ixnpc-  establishini 

diments  both  diriment  and  impedient,  within  the  limits  of  the  natu-  impedientand 

.   .      J  dirtment 

ral  and  divine  I3.IU.  impediments. 

This  is  obvious.  The  common  good  requires  in  this  matter  over 
and  above  the  prescriptions  of  the  divine  and  natural  law,  prohib- 
itive measures  and  also  invalidating  clauses,  e.  g.,  for  the  pur- 
pose of  restricting  marriages  between  those  related  by  consan- 
guinity or  affinity,  for  effectively  preventing  the  marriage  of  the 
accomplices  in  certain  crimes,  and  so  forth.  The  Council  of  Trent, 
Sess.  XXIV,  can.  4,  has  authoritatively  confirmed  this  doctrine, 
and  declared,  under  anathema,  «  that  the  Church  has  recei- 
ved  the  power  of  establishing  diriment  impediments  of  marri- 


I.  Heuser,  o.  c,  p.  II  s.,  gives  the  full  text  of  the  letter  and  the  circumstance 
that  gave  o«cassion  to  it. 


4o6  THE  REGULATION   OF   MARRIAGE 

ag6  (')  »•  Cf.  also  the  59***  proposition  of  the  Synod  of  Pistoia. 

It  is  often  objected,  that  marriage  is  a  sacrament  instituted  by 
Our  Lord,  that  therefore  its  nature  and  character  cannot  be 
modified,  and  that  its  matter  and  form,  according  to  the  teaching 
of  the  Council  of  Trent,  must  remain  free  from  all  substantial 
change.  This  objection  is  sufficiently  specious,  especially  in  so 
far  as  it  concerns  impediments  relating  to  the  formalities  of  the 
contract  ('). 

The  answer,  however,  is  easily  given.  If  Christian  marriage  is 
a  sacrament,  it  is  also  at  the  same  time  a  contract  ;  but  the  con- 
tract which  was  elevated  by  Our  Lord  to  the  dignity  of  a  sacra- 
ment is  not  any  matrimonial  contract  whatsoever,  but  only  the 
valid  contract,  that  is  to  say,  one  made  under  the  conditions  that 
the  competent  authority  requires  for  its  validity.  The  Church  can, 


I.  With  regard  to  the  canon  of  the  Council  and  the  interpretation  to  be  put 
upon  it,  see  the  Declaratio  super  doctrina  professorum  scminarii  gencralis  Lovanii 
of  the  Archbishop  of  Malines  (Card,  de  Franckenberg),  of  26  June  1769,  in 
KuTSCHKER,  o.  c,  I,  p.  69  ss.  ',  and  compare  with  Moser,  o.  c,  p.  iii  ss.  ;  in  this 
Declaration,  the  Prelate,  after  vindicating  the  dogmatic  character  of  the  canon, 
teaches  that  the  power,  which  the  Council  acknowledges  as  belonging  to  the 
Church,  is  a  power  belonging  to  it  in  its  own  right,  and  that  it  was  received 
from  Christ,  not  from  the  civil  Prince.  This  interpretation  is  directed  against 
Launoius  and  his  followers,  who,  as  Moser  remarks,  o.  c,  p.  100,  endeavoured 
to  evade  the  Tridentine  canon  by  contending  that  it  «  was  not  dogmatic,  but 
merely  disciplinary,  and  that  by  the  «  CAMycA»  one  ought  to  understand  kings 
and  princes,  as  being  leading  members  of  it,  whose  name  and  authority  the 
Church  employs,  when  establishing  matrimonial  impediments  ».  Cf.  what  we 
shall  presently  say,  towards  the  end  of  this  n"  219. 

3.  This  difficulty  was  raised  in  the  course  of  the  Council  of  Trent,  on  occasion 
of  the  decree  of  clandestinity,  as  Benedict  XIV  remarks,  in  his  Apostolic  Letter 
of  10  March  1758  (Collectan.,  n9  1391)  :  «  It  was  questioned  at  first  whether  the 
Church  could  do  away  with  clandestine  marriages,  seeing  that  the  lawful  con- 
tract is  at  the  same  time  the  matter  and  form  of  the  sacrament  of  marriage... 
whence  several  concluded  :  that  when  once  the  mutual  transfer  and  acceptance 
of  the  conjugal  right  have  lawfully  taken  place,  the  matter  and  form  exist ;  and 
these  cannot  be  modified  except  by  Him  who  is  the  Author  of  the  grace  con- 
ferred by  the  sacraments  ».  This  is  why  the  Tridentine  Fathers,  in  order  to  avoid 
touching  the  matter  and  form  of  the  sacrament,  established  the  impediment  of 
clandestinity  by  binding  the  contracting  parties  themselves,  and  rendering  them 
incapable  of  contracting  marriage  otherwise  than  before  the  parish  priest  and 
two  witnesses.  See  above,  n"  63  ;  Esmbin,  o.  c,  I,  p.  78  ss.  ;  II,  p.  159  ss. 


THE  REGULATION   OF  MARRIAGE  407 

then,  as  we  have  observed  above  in  n°  216,  by  means  of  impedi- 
ments place  conditions  for  the  validity  of  the  contract,  and  so 
affect  either  the  contracting  parties,  or  the  fonnalities  of  the  act, 
without  modifying  the  substance  of  the  sacrament.  It  places  con- 
ditions for  the  valid  reception  of  the  sacrament,  but  the  substance 
of  the  latter  remains  altogether  intact. 

We  may  add  that  the  Church  alone,  to  the  exclusion  of  the 
State,  has  this  power  of  establishing  impediments.  This  is  a  con- 
sequence of  the  first  statement  demonstrated  above,  viz.,  that  the 
regulation  of  the  whole  of  this  question  is  reserved  to  the  Church 
alone.  Thus  the  State  has  not  the  right  to  establish  even  purely 
prohibiting  impediments  (*). 

But,  for  the  further  question  :  within  what  limits  has  the  Church  Within  what 

the  power  of  setting  up  matrimonial  impediments,  it  will  be  well  matrimonial 

to  keep  these  two  principles  in  mind  :  impediments 

...  may  be  set  up, 

1.  The  Church  has  the  power  of  estabhshing  impediments  for 

its  own  subjects,  not  only  with  a  view  to  spiritual  good,  whether 
private  or  public,  but  also  with  a  view  to  bodily  and  temporal  good. 
For,  marriage  is  a  mixed  matter,  affecting  both  spiritual  and  tem- 
poral well-being,  and  so,  since  the  whole  regulation  of  it  belongs 
to  the  Church,  it  is  the  business  of  the  Church  to  provide  for  both 
in  its  matrimonial  legislation,  considering  what  we  shall  have  to 
say  presently  in  n°  220. 

Thus  the  Church  has  the  power  to  set  up  impediments  of  age, 
consanguinity,  affinity  etc.,  even  in  the  supposition  that  only 
temporal  welfare  requires  it. 

2.  The  Church  has  no  power  to  impose  impediments  that 
infringe  the  natural  and  divine  law.  In  particular,  it  must  have 
regard  for  that  innate  right  of  marrying,  which  each  one  is  recog- 
nised as   having  by    the  natural  law  ;  as  also  for  the  spiritual 


I.  The  teaching  oi Perrottc  and  De  Angelis,  to  whom  may  be  added  Schnei- 
CHER,  o.  c,  p.  13  s.,  that  the  State  has  power  to  introduce,  for  Christian  marri- 
age, impcdient  impediments,  was  expressly  reprobated  by  Leo  XIII,  in  his 
letter  to  the  Bishop  of  Verona,  8  Feb.  1893  :  «  No  other  power  but  that  to  which 
it  belongs  to  determine  the  necessary  conditions  for  the  licit  and  valid  celebra- 
tion of  marriage,  either  can  or  ought  to  pass  judgment  in  the  matter  >.  Acta 
S.  Sedis,  XXV,  p.  462. 


408  THE  REGULATION   OF   MARRIAGE 

necessity  of  the  soul  which  not  unfrequently  renders  it  imperative 
that  one  should  marry. 

This  has  special  reference  to  the  establishment  of  an  absolute 
impediment,  that  is  to  say,  one  by  which  a  determinate  class  of 
persons  is  forbidden  to  marry,  or  rendered  incapable  of  marrying 
by  an  invalidating  law,  not  only  relatively,  in  respect  of  such  or 
such  a  person,  e.g.,  a  relation  by  blood  of  marriage,  but  absolutely, 
in  respect  of  any  person  whatsoever. 

There  are,  indeed,  cases  in  which  that  might  lawfully  be  done 
by  the  Church  ;  but,  apart  from  the  case  in  which  the  prohibition 
or  invalidation  of  marriage  rests  upon  the  spontaneous  renuncia- 
tion, made  by  one  who  takes  a  vow  of  chastity  or  of  celibacy,  or 
receives  Orders,  only  quite  exceptionally  and  for  the  gravest  rea- 
sons could  recourse  be  had  to  the  aforesaid  law  exclusive  of  all 
marriage. 

Two  reasons  of  this  nature  might  be  admitted  :  the  necessity  of 
defending  the  life  and  rights  of  a  third  person,  and  the  necessity  of 
defending  and  vindicating  the  common  good  oj  society. 

The  former  reason  obtains  in  the  case  of  those  who  are  suffering 
from  a  contagious  disease,  e.  g.,  leprosy  or  syphilis,  in  such  a 
degree  as  to  occasion  danger  of  contsLgion  for  the  partner.  Under 
these  circumstances,  it  seems  that  the  social  authority,  for  the 
protection  of  the  life  of  the  partner,  might  forbid,  and  that  under 
pain  of  nullity,  one  so  affected  to  marry,  as  long  as  the  danger  of 
contagion  endures ;  but  such  persons  already  have  no  right  to 
marry  with  such  great  injury  to  a  third  person. 

This  reason  of  defending  the  rights  of  a  third  person  could  not 
be  invoked  in  favour  of  the  prospective  offspring,  that  is  to  say,  in 
such  a  way  that  the  social  authority,  in  order  to  safeguard  the 
right  of  the  child,  would  have  the  right  of  precluding  from 
marriage  those  who  are  sickly,  feeble,  or  suffering  from  a 
disease  that  is  not  contagious  in  respect  of  the  partner,  in  order 
that  sickly  and  defective  children  might  not  be  born  of  such 
a  union  ;  for,  the  child  yet  unconceived  has  no  rights,  and  even 
for  it,  it  is  better  to  be  sickly  than  not  to  be  at  all. 

The  latter  reason  might  obtain  in  a  case  in  which  the  Church 
judged  that  it  was  necessary  for  the  common  good  that  certain 
classes  of  persons  should  not  be  allowed  to  marry.  For, 
the  social  authority  has  the  power  of  restricting  in  its  subjects 


THE  REGULATION  OF  MARRIAGE  409 

the  use  of  liberty,  as  far  as  the  safety  of  society  requires  it,  either 
by  punishing  malefactors,  in  order  that  others  may  be  deterred 
from  crime,  or  by  directly  protecting  society  and  defending  it 
against  evil-doers,  who  endanger  its  existence. 

Thus  a/  by  way  of  punishmctii,  certain  persons  who  outrageously 
violate  the  sanctity  of  marriage  might,  perhaps,  be  excluded  from 
marriage  with  a  view  to  deterring  others  from  such  conduct  and 
inducing  them  to  observe  the  laws  of  marriage  ;  generally,  how- 
ever, it  would  be  better  to  find  some  other  way  of  restoring  order 
and  safeguarding  the  sanctity  of  marriage,  lest  its  prohibition 
should  turn  to  the  ruin  of  the  soul  ('). 

Also  b/,  if  it  should  happen  that  the  very  safety  of  society  was 
endangered  through  the  excessive  number  of  the  degenerate  and 
vicious,  and  the  disproportionate  increase  of  defective  and  abnor- 
mal children,  this  might,  perchance,  be  a  reason  why  the  social 
authority  should  forbid  marriage  to  certain  persons  whose  bodily 
or  mental  condition  is  such  that,  apart  from  the  danger  of  conta- 
gion for  the  partner,  it  is  evident  that  their  offspring  must  be 
extremely  sickly,feeb!e  or  defective  ;  as  also  to  those  whose  intel- 
lectual and  moral  powers  are  so  enfeebled  that  they  are  obviously 
unfit  for  the  bringing  up  of  children. 

But  again,  recourse  must  not  be  had  to  such  restriction  of  the 
liberty  of  marriage  on  these  grounds,  unless  it  is  really  certain 
that  there  is  necessity  for  such  a  step  ;  but  this  will  hardly  ever  be 
the  case.  For,  as  a  rule,  the  number  of  degenerates  is  not  so  great 
as  to  endanger  the  safety  of  society,  which  is  quite  compatible 
with  the  existence  of  a  certain  number.Moreover,  the  children  of  a 
degenerate  or  vicious  father  are  not  always  abnormal  or  vicious  ; 
and,  finally,  the  defects  of  an  evil  disposition  or  inclination 
contracted  by  birth,  may  be  remedied  by  the  manly  and  Chris- 
tian education  of  the  children, and  by  training  them  in  the  practice 
of  virtue,  whereby  good  habits  are  acquired.  This  remedial  course 
is  certainly  to  be  preferred. 


I.  In  former  times,  marriage  was  frequently  forbidden  by  the  Church  in  poe- 
nam  delicti,  as  may  be  seen  from  nos  139,  140,  242  and  329  ;  but  it  must  be  re- 
membered that  the  faithful  were  at  that  time  more  effectively  guarded  against 
licentiousness  and  passion,  by  a  more  fervent  faith  and  also  by  the  various  prac- 
tices of  prolonged  penance  to  which  offenders  were  condemned. 


4IO  THE  REGULATION   OF  MARRIAGE 

Taking  all  this  into  consideration,  apart  from  the  imminent 
danger  of  contagion  for  the  partner,  there  will  rarely  be  good 
ground  for  setting  up  a  matrimonial  impediment  against  degenera- 
tes and  defectives,  even  within  restricted  limits  ;  but  never  could  a 
law,  which  iiniversally  and  by  a  general  statute  forbids  or  invalidat- 
es the  marriage  of  every  person  who  is  diseased  or  in  any  way 
defective,  degenerate  or  abnormal,  be  approved. 
Conclusion.  Conclusion.  Christian  marriage  is  under  the  jurisdiction  of  the 
legislative,  judicial  and  coercive  power  of  the  Church  alone  ;  not 
merely  in  all  that  concerns  either  the  conjugal  contract,  or  the  con- 
jugal bond  itself,  but  also  in  all  that  is  intvnately  connected  with 
the  conjugal  bond,  such  as  the  betrothment  (*)  tha.t  precedes  it,  and 
the  essential  and  inseparable  effects  that  follow  it,  namely,  com- 
munity of  life,  legitimacy  of  offspring,  and  paternal  authority. 

Note.  Our  thesis,  in  its  various  parts,  is  directed  and  it  has 
been  vindicated  by  the  Church,  in  the  first  place,  against  the 
Protestants  who,  rejecting  the  sacramentality  of  marriage,  regard 
it  as  an  entirely  profane  and  secular  institution  (as  we  have  observ- 
ed above  in  n°  96,  and  as  we  shall  have  occasion  to  remark 
again,  below  in  n°  225b),  and  accordingly  taught  that  the  regula- 
tion of  marriage  ought  universally  and  without  any  restriction  to 
be  exercised  by  the  secular  ruler  ;  and,  in  the  second  place, 
against  the  civilists  and  regalists,  of  the  seventeenth  and  eighteenth 
centuries. They  looked  upon  Christian  marriage  as  a  civil-religious 
institution,  consisting  of  a  twofold  element,  the  sacrament  and  the 
contract,  the  contract  being,  in  their  eyes,  of  a  civil  and  profane 
character  (*).  From  this  they  argued  that  marriage  ought  to  be 


i.The  proposition  maintaining  that  betrothment,properly  so  called,  constitutes 
a  purely  civil  act  preparatory  to  marriage,  and  subject  in  everything  to  the 
laws  of  the  State,  as  if  an  act  preparatory  to  the  sacrament  was  not,  as  such, 
dependent  on  the  ecclesiastical  law,  has  been  declared  false...  and  prejudicial 
to  the  rights  of  the  Church,  by  Pius  VI  in  his  Constit.  Auctorem  Fidei.  See  pro- 
position 73  of  Syllabus  of  Pius  IX,  already  mentioned,  Denzinger,  o.  c,  n°^ 
1558  and  1774. 

3.  Thus  De  Dominis,  the  apostate,  at  one  time  Archbishop  01  Spoleto,  in  his 
work,  De  RepiibUca  Christiana  (a.  1617),  hardly  falls  short  of  the  Protestant  doc- 
trine, and  only  hypothetically  admits  the  sacramentality  of  marriage,  and, 
admitting  it,  teaches  that  the  power  of  the  Church  to  regulate  the  marriage 
contract  between  Christians  must  be  denied ;  Launoius,  DeRegia  in  matrimonium 


THE  REGULATION   OF  MARRIAGE  4X1 

regulated  by  the  Prince,  in  so  far  as  it  is  a  contract,  and  by  the 
Church,  in  so  far  as  it  is  a  sacrament  ;  so  that  it  belonged  to  the 
civil  ruler  to  establish  impediments  (at  least  invalidating  impedi- 
ments), as  these  directly  affect  the  contract,  and  not  to  the 
Church,  unless  with  the  consent  of  the  Prince  (•)  ;  cf.  below,  n" 
226,  where  the  evidences  are  given,  and  where  it  is  shown  how 
this  civihst  doctrine  was  practically  applied  in  France  and  Austria, 
and  how  it  prepared  the  way  for  the  introduction  of  civil  marri- 
age. Our  thesis  is  also  directed,  in  the  third  place,  against 
certain  Catholics,  who,  with  Sanchez  and  the  Salmanticenses, 
thought,  or  even  now  think,  that  the  exclusive  right  of  the  Church 
is  not  derived  from  the  very  nature  of  Christian  marriage,  but  from 
a  reservation  made  by  the  Church.  We  speak  of  this  in  n°  217. 

II.  Right  and  duty  of  the  civil  authority. 

A.  Its  right. 

220. 
1.  The  civil  authority  has  the  right  to  exercise  its  legislative.  Rights  of  tJte 

judicial,  and  coercive  power,  not  over  those  points  which  we  have  "^y  ^^^  ^ 

just  enumerated,  but  over  the  purely  civil  effects  of  marriage.  These  marriages  of 
.  r        y  jj  t5  the  faithful; 

effects  are  neither  essential  to  the  conjugal  bond,  nor  inseparable 

from  it  ;  their  direct  and  immediate  concern  is  with  the  merely 

administrative  and  temporal  province  ('),  viz.,  «  the  dowry  ;  the 


potestate  ;  Le  Ridant,  in  his  anonymous  work,  given  in  the  Bibliography,p.  54- 
96  ;  PoTHiER,  o.  c,  especially  nos  11-32.  The  Synodus  Ptstoriensis  (1786)  also 
inclined  to  the  same  error,  likewise  De  Paula  Vigil,  from  whose  work  is  taken 
the  68*  condemned  proposition  of  the  Syllabus.  Cf.  supra,  no  316. 

I.  There  were  also  authors  who,  admitting  the  distinction  between  the  sacra- 
ment and  the  contract,  concluded  therefrom  that  diriment  impediments  could, 
iure  propria,  be  established  at  the  same  time  by  the  civil  ruler  and  by  the  Church  ; 
they  divided  impediments  into  those  affecting  the  contract  and  those  affecting 
the  sacrament.  Thus,  Gerbais,  o.  c,  especially  p.  3-10,  where  he  sets  forth  the 
state  of  the  question  ;  likewise  Carriere,  o.  c,  I,  p.  402  ss. ;  Ballet,  o.  c,  p. 

Le  Ridant,  however,laughs  at  this  distinction  of  impediments  (o.  c,  p.  XV  ss. 
and  p.  56),  and  rightly  so,  since  a  diriment  impediment  cannot  be  understood  as 
affecting  other  than  the  contract  of  marriage  ;  cf.  also  Examen  du  pouvoir  legis- 
latif...,  p.  169  ss.  Add  to  this  that  duality  in  the  regulation  of  one  and  the  same 
marriage  is  impossible.  To  this  impossibility  we  have  appealed  above,  n"  216, 
in  note,  in  opposition  to  the  said  authors. 

3.  Benedict  XIV,  Dc  syn.  diocc.,  L.  IX,  ch.  IX,  n"  4. 


412  THE  REGULATION   OF  MARRIAGE 

rights  of  succession  of  married  persons  in  respect  of  their  parents, 
either  as  to  their  titles  or  property  ;  the  respective  possessions  of 
the  partners,  their  rights  of  succession  to  one  another,  and  those 
of  their  children  to  their  property  and  titles  *  (*). 

«  She  (the  Church)  is  not  ignorant,  and  does  not  deny,  that  the 
sacrament  of  marriage,  being  instituted  for  the  preservation  and 
increase  of  the  human  race,  has  a  necessary  relation  to  events  or 
duties  in  the  life  of  man,  vv^hich,  though  connected  M^ith  marriage, 
belong  to  the  civil  order,and  about  vs^hich  the  State  rightly  inquir- 
es and  decrees  (-)  ». 

The  State,  therefore,  can  legislate  vs^ith  regard  to  these  civil 
effects,  and  impose  certain  conditions,  the  neglect  of  which  may 
deprive  even  valid  marriage  of  such  or  such  civil  effect  ('). 

2.  It  can,  moreover,  take  cognizance  of  offences  against  public 
order  committed  by  Christians  in  their  married  life,  and  vindicate 
the  law  by  the  punishment  of  such  crimes  as  adultery,  incest  and 
wife-murder.  But  it  could  not  do  so  precisely  in  relation  to  the 
marriage,  as,  for  instance,  by  forbidding  or  suspending  the  cohabi- 
tation of  the  parties. 

3.  Finally,  the  State  has  the  right  of  recourse  to  the  Church,  and 
of  demanding  that  it  should,  in  its  matrimonial  legislation,  and 
especially   in  the   establishment  or  abrogation  of  impediments, 


1.  Gasparri,  o.  c,  no  278  ;  he  adds  :  «  Though  married  persons  ought  to  assist 
one  another,  the  amount  of  the  property  which  the  wife  ought  to  bring  her  hus- 
band, i.  e.,  the  dowry,  is  not  determined  by  the  natural  law,  nor  is  it  strictly 
necessary  ;  in  like  manner  parents  are  bound  to  support  and  educate  their  chil- 
dren according  to  their  position,  but  succession  to  titles  of  nobility  depends  on 
the  civil  law  ;  likewise  succession  to  property  can  be  at  least  modified  by  the 
civil  law  according  to  the  requirements  of  society  ».  Cf.  Palmieri,  o.  c,  p.  364. 

2.  Leo  Xin,  Arcanum.  Further  on  he  continues  :  «  All  ought  to  understand 
clearly  that...  the  civil  law  can  only  deal  with  and  settle  those  matters  which 
spring  from  marriage  in  the  civil  order.  »  Again,  in  his  letter  to  the  Bishop  of 
Verona,  8  Feb.  1893,  he  says  :  «  It  is  well  to  call  to  mind  that  the  civil  power  can 
set  up  and  regulate  the  civil  effects  of  marriage  ;  but  all  that  concerns  marriage 
itself  must  be  left  entirely  to  the  jurisdiction  of  the  Church».  AciaS.  Sedis,  XXV' 
p.  460  s.  See  also  the  letter,  already  mentioned,  of  Leo  XIII  to  the  Bishops  of 
Peru,  16  Aug.  1898. 

3.  For  example,  the  law  can  decree  that  the  children  of  a  prince  shall  not 
share  their  father's  rank,  unless  their  mother  has  the  rank  of  princess.  See 
Morganatic  Marriage,  n°  95. 


THE  REGULATION  OF  MARRIAGE  413 

take  into  consideration  the  circumstances  and  requirements  of  the 
faithful  among  those  who  are  subject  to  its  laws. 

The  Church,  on  its  side,  is  always  ready  to  show  good  will,  as 
far  as  it  can  do  so  without  contravening  the  divine  or  ecclesiasti- 
cal law  :  «  The  Catholic  Church,  though  she  cannot  in  any  way 
give  up  the  duties  of  her  office  or  the  defence  of  her  authority,  is 
still  very  greatly  inclined  to  kindness  and  indulgence,  whenever 
they  are  consistent  with  the  safety  of  her  rights  and  the  sanctity 
of  her  duties.  Wherefore  she...  has  more  than  once  mitigated,  as 
far  as  possible,  the  enactments  of  her  own  laws,  when  there  were 
just  and  weighty  reasons  »  ('). 

B.  Its  duty. 

1.  It  is  the  duty  of  the  State  to  recognise  as  legiiimateihc  marriage  Us  ditties,and 
of  Christians,  validly  contracted  in  accordance  with  laws  of  the  ^ '»^ ''K)' «''<'. 
Church,  and  it  cannot  deny  to  the  same,  in  the  civil  courts,  those 

effects  which  are  inseparable  from  every  valid  marriage,  particu- 
larly the  legitimacy  of  their  union  as  husband  and  wife,  and  the 
legitimacy  of  the  children  born  of  the  marriage. 

2.  As  to  the  purely  civil  effects  which  are  separable  from  the  marri- 
age bond,  and  subject  to  the  civil  law,  the  State  ought  «  to  view 
the  validity  or  invalidity  of  marriage  in  accordance  with  the  deci- 
sions of  the  Church,  and,in  dependence  on  these  decisions,  which 
it  does  not  fall  within  its  province  to  make,  to  provide  for  the  civil 
effects  ■»  (^). 

Undoubtedly,  in  order  that  it  may  legally  recognise  canonically 
valid  and  lawful  marriage,  and  give  it  its  civil  effects,it  is  necessary 
that  the  civil  authority  should  have  proof  of  the  same,  and  it  may 
therefore  require  for  this  purpose  a  certain  formality, such  as  regis- 
tration. It  may  also  penalise  the  omission  of  this  formality,  but 
without  going  so  far  as  to  «  consider  marriage  as  valid  and  lawful 
before  the  lay  courts,only  from  the  time  of  its  civil  registration  >. 
Wernz,  o.  c,  n.  83. 


1.  Leo  XIII,  Arcanum. 

2.  Ibid.  Sec  also  the  letter  of  Leo  XIII,  of  8  Feb.  1893  :  «  Let  the  same  lay 
power  recognise  as  true  and  lawful  that  marriage  which  was  instituted  by 
Christ,  and  is  taught  by  the  Church,  and  thence  let  it  proceed  to  grant  or 
refuse  to  the  marriages  of  its  subjects  the  effects  of  marriage  in  civil  society  ». 
L.  c,  p,  461. 


414  THE  REGULATION   OF   MARRIAGE 

3.  Finally,  the  State  has  the  duty  of  assisting  the  Church  in  the 
regulation  of  Christian  marriage  ;  it  ought  to  facilitate  the  obser- 
vance of  the  canonical  matrimonial  legislation,  and  even,  at  the 
request  of  the  Church,  to  bring  legal  pressure  to  bear  upon  its 
subjects  (').  This  good  understanding  between  the  two  powers, 
and  due  subordination  are  most  greatly  to  be  desired  ;  the  State 
as  well  as  the  Church  has  the  greatest  interest  in  the  right  regula- 
tion of  Christian  marriages.  It  is  €  good  for  both  (powers),  and  of 
advantage  to  all  men,  that  there  should  be  union  and  concord 
between  them  ;  and  that  on  those  questions  which  are,  though  in 
different  ways,  of  common  right  and  authority,  the  power  to 
which  secular  matters  have  been  intrusted,  should  happily  and 
fittingly  depend  on  the  power  which  has  in  its  charge  the 
interests  of  heaven.  In  such  an  arrangement,  and  in  such  har- 
mony, there  is  found  not  only  the  best  condition  for  each  power, 
but  also  the  most  opportune  and  efficacious  method  of  helping 
men  in  all  that  pertains  to  their  life  here,  and  to  their  hope  of 
salvation  hereafter  >  (*). 

Scholion  I.  To  whom   belongs  in  the   Church  the   power   of 
921  regulating  the  marriages  of  the  faithful  ? 

To  whom  be-      Th.&  Sovereign  Pontiff  and  general  Co««a7s  enjoy  a  complete  and 
Church  the   independent    power,    legislative,    judicial    and     coercive,     over 

regulation  of  Christian  marriage. 
Christian  .  .  . 

marriage.         The  Bishops,  individually,  cannot,  under  the  existing  discipline 

of  the  Church,  exercise  legislative  power  in  the  matter  of  marriage, 

and  particularly  they  cannot  set  up  impediments,  either  diriment 

or  impedient  (*). 

They  can  exercise  in  the  matter  a.  judicial  and  coercive  power,  as 
judges  of  the  external  forum,  but  in  dependence  on  the  Holy  See, 
which  also  reserves  to  itself  certain  matrimonial  cases,  such  as 
those  of  royal  personages,  and  of  non-consummation. 

Parish  priests  are  not  even  judges  of  the  external  forum  ('),  and 


1.  Leo  XIII,  Arcanum. 

2.  Bishops  have  power  in  particular  cases  to  forbid  the  celebration  of  a  marri- 
age, but  solely  for  reasons  based  on  law,  so  as  not  to  make  a  new  law,  but 
simply  to  apply  the  existing  law  ;  this  is  rather  an  exercise  of  the  judicial  and 
coercive  than  of  the  legislative  power.  Cf.  Ben.  XIV.  De  Syn.  dioec,  1.  VIII,  c. 
14,  no  5 ;  see  also  below,  where  we  speak  of  the  Church's  Prohibition. 

3.  Collat.  Brug. ,  t.  VI,  p.  594  s. 


THE  REGULATION   OF  MARRIAGE  415 

SO  they  cannot  exercise  legislative,  or  even  judicial  or  coercive 
power.  Their  powers  are  confined  to  drawing  up  the  cases  to  be 
laid  before  the  Bishop,  and  to  stopping  a  marriage  provisionally. 
They  cannot  judicially  decide  matrimonial  disputes. 

Observe  that  the  Holy  See  exercises  its  judicial  power  over  marri- 
age through  the  agency  of  the  Congregations  and  Tribunals  specially 
deputed  for  this  purpose.  Apart  from  the  5.  Congr.  pro  negoiiis  Rituum 
Orientalitim,  which  has  a  certain  power  in  the  matter,  it  is  to  the 
S.  Officium  that  belong  matrimonial  causes  concerning  the  Pauline 
privilege  and  the  impediments  of  disparitas  cultus  and  mixta  religio ; 
other  causes  regard  the  5.  Congr.  de  disciplina  sacramentorum, 
whenever  it  is  a  question  o(  disciplinary  regulations,  and  the  5".  Rota 
in  cases  in  which  a  strictly  judicial  course  has  to  be  followed  (*). 
Finally,  the  S.  Poeniteniiaria  deals  with  the  settlement  of  all  ques- 
tions belonging  to  ihQ  forum  internum.  Cf.  below,  n.  341  et  351. 

This  distribution  was  made  by  the  Constitution  of  Pius  X, 
Sapienti  consilio,  of  the  29  June  1908,  to  be  found  in  the  Acta  Ap. 
Sedis,  I,  p.  7  ss.,  with  which  Constitution  are  connected  various 
documents,  viz..  Lex  propria  S.  Rom.  Rotae  et  Signaturae  Apostoli- 
cae,  29  June  1908  (A.  A.  S.,  I,  p.  20  ss.)  and  Regulae  servandae  apud 
Supremiim  Signaturae  Apostolicae  Tribunal,  of  6  March  1912  (A.  A.  S., 
IV,  p.  187  ss.)  ;  Ordo  servandus  in  SS.  Congregationibus,  tribunalibus, 
Officiis  Romanae  Curiae  —  Normae  Commmies,  19  June  1908  (A.  A. 
S.,  I,  p.  36  ss.)  and  Normae  Peculiares,  29  Sept.  1908  (A.  A.  S.,  I,  p. 
59  ss.)  C). 

Scholion  II.  Who  are  subject  to  the  power  of  the  Church  ? 

1.  Directly  all  baptized  Christians  exclusively,  not  only  Catholics,  All  baptized 
but  also  non-catholics,  are  subject  to  it,  unless  specially  exempted.     andt>^v^^^l 

The  reason  of  this  is  to  be  found  in  the  baptismal  character,  are  directly 

which  all  baptized  persons  exclusively  possess,  and  which  is  the   rule  of  tlve 

Church  in  tlie 

matter  of 
I.  On  the  distinction  between  the  disciplinary  course  and  the  judicial  course,     marriage  ; 

cf.  OjETTi,  De  Curia,  no  12  s.  ;  Monin,  o.  c,  p.  177  ss.  ;  Collat.  Brug.,  t.  XIV, 
p.  285  s.  Whether  also  matrimonial  causes  that  specially  belong  to  the  S.  Offi- 
cium, if  they  are  to  be  treated  judicially,  should  be  sent  to  the  S.  Rota,  see 
below,  no  341. 

3.  Among  the  commentaries,  see  Ojetti,  o.  c.  ;  De  Meester,  o.  c.  ;  Monin, 
o.  c.  ;  Russo,  La  Curia  Romana,  Palermo,  1901  ;  Choupin,  apud  Etudes,  tom. 
CXVII ;  Besson,  in  the  N.  R.  th.,  1908  and  1909  ;  Simier  in  the  Revue  Angus- 
tinienne,  igoS,  and  other  works  mentioned  in  the  Collat.  Brug,,  t.  XIV,  p.  281. 


4l6  THE  REGULATION  OP  MARRIAGE 

basis  of  the  subjection.  «  It  is  beside  the  question  to  say  that  here- 
tics are  cut  off  and  cast  out  by  the  Church,  in  consequence  of  the 
excommunication  that  they  lie  under,  as  corrupted  members  ; 
such  a  way  of  speaking  merely  means  that  they  are  out  of  the 
Church  as  far  as  participation  in  the  common  advantages  of  the 
faithful  and  in  their  suffrages  is  concerned.  They  are  rather  to  be 
compared  with  deserters  and  rebels,  who  none  the  less  remain 
amenable  to  the  authority  of  their  own  rulers  (')  ». 

Rightfully,  then,  heretics  are  subjects  of  the  Church  both  in  the 
matter  with  which  we  are  now  concerned  and  in  all  other  matters. 
Moreover,  they  are  not  in  the  generality  of  matrimonial  causes 
relieved  of  this  dependence,  either  by  a  general  decree  of  the 
Church,  or  by  a  prescription  or  custom  to  the  contrary,  as  Feye 
shows  at  length,  De  Mairimoniis  mixtis,  p.  89  ss.,  where  he  brings 
forward  a  number  of  documents  that  explicitly  declare  that  it  is 
so  (*).   We  say  :  in  the  generality  of  matrimonial  causes,  because. 


1.  Van  den  Berghe,  De  Legibus,  Brugis,  1904,  no  105. 

2.  Among  these  documents,  we  must  especially  mention  the  Constit.  of  Bene- 
dict XIV,  Singulari  nobis.  The  Pope  there  speaks  of  a  marriage  contracted 
without  a  dispensation  between  a  Jew  and  a  Protestant,  and  says  that  it  ought  to 
be  repeated  :  «  for,  the  marriage  at  first  contracted  (before  reconciliation  to  the 
Church)  was  entirely  null,  owing  to  a  diriment  impediment,  called  disparitas 
cultus  ».  It  is  a  question  here  of  an  impediment  established  by  ecclesiastical  law 
only. 

Again,  in  his  celebrated  Declaration  of  4  Nov.  1741,  Benedict  XIV  writes  : 
«  His  Holiness  declares  that  we  must  regard  as  valid  such  marriages  (contracted 
clandestinely  in  Holland  between  heretics  or  between  a  heretic  and  a  Catholic), 
provided  that  there  is  not  any  other  canonical  impediment  ».  Collectan.,  n"  1420. 
See  also  the  Const.  Magna  nobis,  the  Const.  Ad  tuas  manus,  and  the  letter  to  the 
Bishop  ofBreslau  ;  the  Rescript  of  Pius  VI  to  the  Cardinal  de  Franckenberg  and 
his  letter  to  the  Archbishop  ot  Prague,  etc.  ;  these  documents  are  quoted  with 
others  by  Feye,  1.  c,  p.  91  ss.  Cf.  also  the  Letter  of  Pius  VII  to  the  Archbishop 
of  Mayence,  in  1803  (in  the  Acta  S,  Sedis,  VII,  p.  6.*). 

The  same  doctrine  is  again  affirmed  by  the  deer,  of  the  S.  C.  C.  of  18  Jan. 
1663,  ad  31",  Collectan. ,n°  1318  ;  and  by  the  Instr.  of  the  C.  S.O.  of  20  March  i860, 
where  we  read ;  «for  the  unbaptized,  it  is  necessary  to  examine  the  impediments 
of  the  natural  law ;  but  for  heretics,  we  must  add  thereto  the  impediments  of 
the  Church,  to  which  they  are  subject ».  Collectan.,  n"  1297.  See  also  the 
Causa  Parisien.  of  1903  (in  the  Anal.  eccL,  1903,  p.  284  s.). 

The  quinquennial  faculties  ordinarily  granted  to  Bishops  afford  us  a  final 
argument,  viz.,  «  dispensandi...  in  contrahendis  et  contractis,  cum  hcereticis 
conversis  etiam  in  2  simplici  et  mixto  », 


THE  REGULATION   OF  MARRIAGE  417 

by  a  special  exception  affecting  the  impediment  of  clandestinity, 
the  Decree  Ne  Temere  exempts  from  it  heretics  (that  is  to  say, 
those  who  have  not  been  baptized  in  the  CathoHc  Church  and 
have  never  been  converts  to  CathoHcism),  who  marry  among 
themselves,  and  those  who,  in  the  German  Empire  or  in  the 
Kingdom  of  Hungary,  contract  a  mixed  marriage  (*). 

2.  Indirectly,  even  unbaptized  persons  are  subject  to  the   matri-    unbaptized 
monial  power  of  the  Church,  and  on  two  grounds  :  indirectly. 

a/  by  reason  ofihc  dependence  of  the  baptized  party  ^  with  whom  the 
unbaptized  party  wishes  to  contract  marriage.  For,  the  validity  of 
the  contract  requires  the  ability  of  both  the  contracting  parties, 
and  consequently  the  inability  which  directly  affects  one  of  the 
parties,  indirectly  affects  the  other  also  (*). 

b/  Unbaptized  persons  are  subject  to  the  matrimonial  power  ot 
the  Church  on  yet  another  ground  :  *  there  are  certain  bonds 
contracted  in  infidelity,  which  have  no  influence  on  the  validity  of 
the  marriage  as  long  as  the  state  of  infidelity  endures,  but  which, 
after  conversion,  constitute  a  diriment  impediment  >  (^). 

Thus  the  decree  of  the  C.  S.  O.,  of  26  Aug.  1891,  declares  c  that 
affinity  naturally  contracted  in  the  case  of  the  unbaptized  in  con- 
sequence of  sexual  intercourse,  whether  licit  or  illicit,  is  not  an 
impediment  to  marriage  contracted  in  the  state  of  infidelity,  but 
becomes  an  impediment  for  marriage   contracted  after  the  reception 


1.  See  above,  nos  77  and  79. 

2.  Thus  the  impediment  of  disparitas  cultus  which  directly  binds  the  baptized 
person  and  renders  him  incapable  of  marrying  an  infidel,  at  the  same  time 
affects  the  latter  indirectly.  It  is  the  same  also  with  the  impediment  of  consan- 
guinity between  the  said  persons  to  the  fourth  degree,  and  that  of  lawful 
affinity  likewise  to  the  fourth  degree,  and  that  of  unlawful  affinity  to  the  second 
degree. 

The  same  applies  to  the  impediment  of  public  decency  (Feye,D5  Imp. ,  n°  408), 
asalso  to  that  ofcr/»»tf»,  under  certain  conditions.  See  Feye,  o.  c,  n0  458;DB 
Becker,  D<j  Matr.,p.  195  ;  and  the  deer,  of  the  S.  C,  de  P.  P.,  23  Aug.  1852,  ad 
2""  [ColUctan.  de  P.  F.,  no  1356).  We  have  already  said,  in  nos  77  and  79,  that 
the  same  principle  is  applicable  under  the  new  regime  introduced  by  Pius  X, 
as  concerns  the  impediment  of  clandestinity,  saving  the  exception  made  for  the 
German  Empire  and  the  Kingdom  of  Hungary.  For  the  special  condition  of 
spiritual  relationship  in  this  matter,  see  below,  nos  216,  317. 

3.  Cf.  De  Becker,  De  Matr.,  p.  33. 

a? 


4i8  The  regulation  of  marriage 

of  Baptism,  whereby  they  become  subjects  of  the  Church,  and 
consequently  subject  to  its  laws  >.  CoUecian.,  n°  1247  (').  Observe, 
according  to  what  we  have  said  under  letter  a/,  that  the  conver- 
sion of  one  only  oi  the  two  parties  is  sufficient  to  annul  the  marri- 
age of  persons  who  have  contracted  this  bond  of  affinity  while 
in  the  state  of  infidelity. 

On  the  other  hand,  the  case  o( public  decency  between  unbaptized 
persons  is  not  an  impediment  to  their  marriage  contracted 
after  baptism  (*),  and  it  is  the  same  with  crimen  (').  The  impedi- 
ment crimen  rests  on  an  offence  that  the  reception  of  baptism  is 
considered  to  remove  entirely,  so  that  no  further  account  is  taken 
of  it. 

Note.  It  is  evident  that  unbaptized  persons  are  bound  by  the 
impediments  of  the  natural  and  divine  law  ;  and,  as  the  Church 
is  the  authoritative  interpreter  of  both  these  laws,  its  declarations 
,,„  on  the  subject  are  also  binding  on  the  unbaptized. 

Form  used  by     Scholion  III.  Form  in  which  the  Church  exercises  its  power, 
the  exercise        *  ^^^  written  form  is  that  ordinarily  employed  by  the  Church  in 

of  this  power,  the  establishment  of  diriment  or  impedient  impediments  ;  never- 
theless, there  are  several  examples  of  impediments  introduced  by 
custom  alone,  for  instance,  that  of  disparitas  cultus  ».  De  Becker, 
De  Matr.,  p.  34.  This  author  observes  that  custom  might  still  have 
power  to  produce  the  same  effect,  though  it  would  be  difficult  for  it 


I.  See  also  the  Instr.  of  the  C.  S.  N.,  16  Sept.  1834,  Collect.,  no  1235,  ad  a""  ;  cf. 
the  R.  Th.  Fr.,  1896,  p.  574  s. ;  the  deer,  of  the  S.  C.  de  P.  F.  of  25  Aug.  1852,  in 
the  Collectan.,  no  1237  ;  the  deer,  of  the  C.  S.  O.,  of  June  1895,  in  the  N.  R.  TA., 
XXIX,  p.  561 ;  the  deer,  of  the  C.  S.  O.  of  16  Dec.  1898,  in  the  R.  Th.  Fr.,  1899, 

P-  195- 

3.  The  C.  S.  O.  explicitly  declares  this  in  the  decree  of  19  Apr.  1837  ;  Collec- 
tan,, no  1354.  In  the  case  proposed  :  «  Titius,  a  pagan, married  the  pagan  Maevia, 
but  did  not  consummate  the  marriage  ;  after  the  death  of  Maevia  he  became 
a  Christian.  Can  he  marry  Bertha,  the  sister  or  cousin  of  Maevia,\vho  has  abjur- 
ed paganism  and  become  a  Christian  ?  Must  we  decide  also,  from  this  point  of 
view, the  question  of  betrothment  between  pagans,  and  that  of  marriage  ratum  ?». 
The  S.  Congr.  replied  :  «  The  impediment  does  not  exist  ». 

3.  The  S.  C.  de  P.  F.,  on  the  33  Aug.  1852,  replied  in  the  affirmative  to  the 
following  question  :  *  An  iniidel  committed  adultery  with  a  married  woman  who 
was  also  a  pagan, and  under  promise  of  marriage  killed  the  husband  with  the  con- 
sent of  the  wife.  Can  the  guilty  pair,after  their  conversion, marry  one  another  ?». 
Collectanea,  no  1356. 


THE  REGULATION   OF  MARRIAGE  419 

to  possess  all  the  conditions  requisite  for  establishing  an  impedi- 
ment with  the  force  of  law.  See  below,  n°^  289  and  292. 

Paragraph  II.  REGULATION  OF  MARRIAGE  OF  UNBAPTIZED 

PERSONS. 

224. 
Proposition.  We  acquiesce  in  the  opinion  that  holds  thai  the  supreme   The  regula- 

civil  authority  has  the  power  of  regulatitig  the  marriages  of  its  unbaptiz-  ageofunbat 

ed  subjects,  and  of  establishing  even  diriment  impediments.  tized  persons 

rests  with  the 
Demonstration.  State : 

1.  There  is  first  the  argument  from  theological  reason,  contained  the  nature  of 
in  the  proofs  which  we  have  employed  in  the  demonstration  ol  the     "J^^y^^^f. 
first  proposition  of  paragraph  i. 

Marriage,  apart  from  the  sacrament,  is  not  intrinsically  and 
essentially  sacred  ;  if  it  can  be  said  that  it  is  holy,because  it  tends 
to  multiply  the  members  of  religious  society  and  to  educate  them 
for  the  glory  of  God,  it  can  also  be  said  that  it  is  secular,  since  it 
regards  quite  as  immediately  the  well-being  and  increase  of  civil 
society.  It  is  precisely  this  natural  end  of  the  matrimonial  con- 
tract which  constitutes  the  title  and  sanctions  the  power  ot  the 
civil  authority  to  regulate  the  marriage  of  the  unbaptized ;  and  in 
this  case  there  is  nothing  against  the  exercise  of  this  right,  since 
the  higher  right  of  the  Church  is  not  concerned  with  it  ;  for,  the 
Church  has  no  jurisdiction  over  those  who  are  not  of  its  fold. 

Consequently,  the  regulation  of  marriage  between  unbaptized 
persons  rests  with  the  secular  authority  ;  and  this  involves,  sub- 
ject to  the  divine  and  natural  law,  the  setting  up  of  impediments 
both  diriment  (')  and  impedient,  inasmuch  as  the  arguments 
given  above,  in  n°  219,  and  drawn  from  the  public  welfare  and 
social  order,  hold  good  no  less  for  civil  than  for  religious  society. 

2.  There  is  also  the  argument  from  authority. 

This  opinion  finds  support  in  several  documents  of  the  Holy 
See,  especially  in  the  reply  given  by  the  S.  C.  de  P.  F.,  26  June 
1820  (-),  and  in  the  Instruction  of  the  same  Congregation,  of  the 


I.  Cf.  Wernz,  o.  c,  no  77,  where  he  shows  that  Perrone  is  illogical  in  admit- 
ting that  the  State  has  the  power  to  set  up  impedient  but  not  diriment  impedi- 
ments. 

3.  See  in  the  Collectanea  of  the  S.  C.  de  P.  F.,  n"  1447,  the  text  of  the  decree, 
which  declares  null  a  marriage  contracted  in  infidelity  «  without  the  observance 


420  THE  REGULATION  OF  MARRIAGE 

8  Oct.  1631,  to  the  missionaries  in  India,  regarding  Indian  polyga- 
mists  (•).  The  reply  and  instruction  of  the  C.  S.  O.,  of  20  Sept. 
1854  and  of  29  Oct.  1739  respectively,  though  commonly  quoted  and 
commented  on  in  works  on  this  subject  (*),  are  really  less  important 
and  convincing  for  our  present  purpose. 

it  belongs  to       Corollary  I.  The  regulation  of  marriage  of  unbaptized  persons, 

thority  as'  ^^^  ^"  particular  the  power  of  establishing  impediments,  belongs 

such.        to  the  civil  authority  as  such,  and  not  as  a  trustee  of  the  religious 

authority,  though  this  latter  opinion  is  held  by  Lehmkuhl,  o.  c, 

II,  n.  727,  and  by  Palmieri,  o.  c  ,  p.  279,  compare  p.  271  s. 

Moreover,  this  power  belongs  to  it  m  Us  own  right,  and  not 
merely  as  a  result  of  circumstances,  as  Billot  thinks,  o.  c,  II,  p. 
429,  as  if  €  in  this  case,  the  force  of  circumstances  assigned  to  the 
only  lawful  authority  in  power,  the  office  of  safeguarding,  as  well 
as  may  be,  the  social  welfare  »  ('). 


ot  a  ceremony,  the  omission  of  which,  according  to  the  laws  of  Tonquin,  is  held 
as  a  diriment  impediment  ».  It  is  added  that  a  new  marriage  may  be  contracted. 
But,  as  Wernz  says,  o.  c,  no  80,  note  208,  «  the  nullity  of  the  marriage,  with 
full  liberty  to  contract  another,  neither  was  nor  could  be  declared  by  the  Cardi- 
nals without  certain  proofs  of  law  and  fact  ;  otherwise  there  would  be  a  grave 
transgression  of  the  divine  law  that  established  the  impediment  ligamen  ». 

To  this  decree  is  added  an  Instruction,  quoted  1.  c.  in  the  note,  drawn  up  by 
the  Consultor,  and  sent  the  following  year  ;  though  it  is  not  certain  that  it  was 
sent  on  behalf  of  the  S.  Congr.  ;  cf.  on  this  subject  Resemans,  o.  c,  p.  71  ss.  and 
93.  In  any  case  the  competence  of  the  State  is  clearly  affirmed  :  c  Secular  rulers, 
whether  Christians  or  infidels,  have  complete  power  over  the  marriages  of  their 
non-christian  subjects  ;  and,  subject  to  the  natural  and  divine  law,they  can  estab- 
lish impediments  annulling  such  marriages  not  only  as  to  their  civil  effects,  but 
even  as  to  the  conjugal  bond  ». 

1.  «  Indian  polygamists  who  are  converted  to  the  faith  together  with  all  their 
wives  and  receive  baptism,  are  bound  to  send  away  all  such  wives,  with  the 
exception  of  the  first,  who  alone  is  the  real  wife,  provided  that  the  marriage  has 
not  been  invalidated  by  an  impediment  of  the  natural  law,  or  of  tin  positive  law 
made  by  their  secular  ruler  ».  Gasparri,  o.  c,  no  287.  This  Instruction  was  certain- 
ly sent  by  order  of  the  S.  Congr.,  but  rather  as  an  opinion  of  theologians  and 
canonists  than  as  a  decree  of  the  Congregation. 

2.  Cf.  De  Becker,  DeMatr.,  p.  40  s. ;  Gasparri,  o.  c,  p.  286;  Resemans,  o.  c, 
p.  81  ss.  ;  Theol.  Mechl.,  which  has  here  changed  its  former  opinion ;  and  espe- 
cially Wernz,  o.  c,  n"  81  note  209. 

3.  Paoli,  o.  c,  p.  129-145  and  Leitner,  Lehrb.,  p.  24  ss.,  speak  in  the  same 
sense. 


THE  REGULATION   OF  MARRIAGE  421 

Corollary  II.  We  must  not  consider  the  power  of  regulating  Limits  of 
the  marriages  of  the  unbaptized,  possessed  by  the  civil  ruler,  ^^"*  power. 
as  restricted  to  the  limits  laid  down  by  Zigliara  (').  According 
to  him,  the  civil  authority  can  only  determine  what  the  natural 
law  in  a  less  determinate  way  already  requires,  so  that  <  the 
prescriptions  of  the  civil  authority  do  not  bind  of  themselves,  but 
only  in  virtue  of  the  natural  law  *. 

With  a  view  to  temporal  well-being,  the  regulating  power  pos- 
sessed by  the  civil  ruler  can  be  exercised  by  him  in  respect  of  the 
unbaptized,  as  fully  as  that  possessed  by  the  Church  (described 
in  n°  219)  in  respect  of  the  faithful.  Like  the  Church,  the  Prince 
also  cannot  impose  impediments  that  infringe  the  divine  and  natural 
law.  This  has  special  reference  to  the  setting  up  of  absolute  impe- 
diments, by  which  the  marriage  of  a  subject,  not  otherwise  dis- 
qualified, with  any  person  is  prohibited  and  invalidated  ('). 


1.  Cf.  Melata,  o.  c,  p.  20  and  p.  28. 

2.  See  what  we  have  said  above,  in  n°  2rg,  from  which  it  will  be  apparent  that 
in  some  of  the  states  of  the  United  States  of  America  the  limits  are  greatly 
exceeded.  A  considerable  movement  exists  there  for  promoting  the  selection  of 
the  human  species,  or  the  propagation  of  offspring  sound  in  mind  and  body 
(known  as  Eugenics),  to  the  exclusion  of  that  which  is  vitiated  and  adulterated. 
Under  this  pretext,  an  attempt  is  being  made  to  preclude  from  marriage  those 
who,  it  is  feared,  may  bring  into  the  world  children  suffering  from  some  heredi- 
tary taint. 

In  the  state  o{  Michigan  the  law  declares  every  person  suffering  from  syphilis  or 
^OMo-rWjcrt  incapable  of  contracting  marriage. A  like  law  exists  in  the  State  oiUtah. 

Epileptics  and  persons  of  feeble  or  unsound  mind  are  prohibited  to  marry 
in  the  States  of  Indiana,  Minnesota,  New-Jersey  and  Ohio ;  also  in  the  States 
of  Kansas  and  Utah,  unless  the  woman  be   over  the   age  of  forty-five. 

In  the  State  oi  Ohio  no  license  to  marry  shall  be  granted,  «where  either  of  the 
parties...  is  an  habitual  drunkard...  or  who,  at  the  time  of  making  application  for 
said  license,  is  under  the  influence  of  any  intoxicating  liquor  or  narcotic  drug  ». 

These  various  prohibitions  to  marry  and  others  are  all  inserted  in  the 
code  in  force  in  the  State  of  Washington  :  «  No  woman  under  the  age  of 
45  years,  or  man  of  any  age,  except  he  marry  a  woman  over  the  age  of  45  years, 
either  of  whom  is  a  common  drunkard,  habitual  criminal,  epileptic,  imbecile, 
feeble-minded  person,  idiot  or  insane  person,  or  person  who  has  theretofore  been 
afflicted  with  hereditary  insanity,  or  is  afflicted  with  pulmonary  tuberculosis,  in 
its  advanced  stages,  or  any  contagions  venereal  disease,  shall...  intermarry  or 
marry  any  other  person  within  this  State  ». 

See  the  described  dispositions  in  The  Ecclesiastical  Review  Year  BooAs.Philadel- 
phia,  1910  :  Encyclop.Britannica,  Wo  Marriage,t.  XVII ;  Schulte,  Eherecht,  1.  c. 


422  THE  REGULATION   OF  MARRIAGE 

Practical        Corollary  III.  To  judge  of  the  validity  of  a  marriage  contracted 

in  infidelity,it  is  necessary  to  take  into  consideration  the  diriment 

impediments  that  the  parties  may  have  been  under,  according  to  the 

civil  laws  of  their  own  country.  Nevertheless,  as,  on  the  one  hand, 

the  opinion  given  above  is  not  absolutely  certain,  and,  on  the  other 

hand,  it  is  difficult  to  distinguish  clearly  between  the  diriment  and 

impedient  impediments  of  the   various  legislations,  the  question 

must  not  be  decided  without  previous  recourse  to  the  Holy  See('). 
225a 
7he  regula-      Note.  1 .  It  is  a  controverted  point  whether  a  marriage  between 

agthetwien  ^  baptized  and  an  unbaptized  person  is  subject  only  to  ecclesiasti- 

a  baptized    cal  regulation  and  impediments,  or  whether,  in  the   case  of  the 
and  an  unbap- 
tized person  unbaptized  party,  those  of  the  civil  authority  must  also  be  taken 

belongs  to  the  Jj^j-q  consideration. 
Church  alone. 

For  our  part,  we  adopt  the  opinion  of  Resemans,  o.  c,  p.  2  ; 

Wernz,  o.  c,  p.  94  s.,  and  Gasparri,  o.  c,  in  his  edition  of  1904, 

n°  306,  against  that  of  Van  de  Burgt-Schaepman,  o.  c.,n°  48 ;  De 

Becker,  De  Mair.,  p.  44,  and  D'Annibale,  Sumtnula,  III,  p.  294  ; 

and  hold  that  the  regulation  of  such  marriages  belojtgs  exclusively  to 

the  Church,  so  that,  in  judging  of  their  validity,  there  is  no  need  to 

take  into  consideration  the  provisions  of  the  civil  law,  even  with 

regard  the  unbaptized  party. 

Our  reason  for  this  is,  that  according  to  what  we  have  said 

above,  it  is  not  possible  that  the  same  marriage  should  be  at  the 

same  time  subject  to  the  regulations   of  two  independent  and 

distinct  authorities  (') ;  consequently,  when  the  occasion  arises, 


I.  Cf.  De  Becker,  De  Matr.,  p.  43  ;  he  rightly  remarks  :  « In  this  matter  it  is 
necessary  to  proceed  with  prudence,  first  seriously  inquiring  if  the  civil  law  is  in 
conformity  with  the  natural  and  divine  law,  and  moreover,  if  the  legislators 
intended,  at  least  implicitly,  to  establish  a  law  or  prescription  binding  in  con- 
science. It  may  be  that  they  had  no  intention  of  legislating  about  the  marriage 
bond  itself,  but  only  about  the  temporal  and  civil  effects  and  consequences  of 
marriage  ».  Moreover,  where  it  is  a  question  of  a  new  colony,  like  the  Congo, 
for  instance,  which  has  just  received  a  new  code  of  laws,  the  sufficient  promulga- 
tion of  the  same  will  often  be  open  to  doubt,  and  it  may  be  a  question  if  the  law 
obliges  in  a  particular  case  in  which  its  observance  was  practically  impossible. 
See  Salsmans,  o.  c,  p.  13  s. 

a.  See  above,  no  216.  We  said  there  that  it  was  possible  that  the  Church  and 
State  might  require  for  the  validity  of  the  contract  formalities  that  mutually 
excluded  one  another.  It  is  useless  to  try  to  set  aside  this  argument  by  pleading 
that,  under  the  circumstances,  one  would  only  have  to  apply  the  principle  or 


THE  REGULATION  OF  MARRIAGE  423 

the  law  of  the  State  ought  to  yield  to  the  higher  law  of  the  Church. 

2.  The  regulation  of  the  marriage  of  unbaptized  persons  by  the 

civil  authority  does  not  involve,  as  we  have  seen,  any  power  to 

dissolve  the  conjugal  bond,  contrary  to  what  we  have  said  in  n°^ 

31  and  32  with  regard  to  the  contract  of  betrothment. 

2i6b. 

Scholion  I.  On  the  right  of  the  State  to  sterilise  certain  of  its  sub-  The  right  of 
iects  ^^^  State  to 

''         '  sterilise  its 

With  the  question  mooted  above,  in  Corollary  II,  taken  in  conjunction      subjects, 

with  what  has  been  said  in  n°  219,  is  intimately  connected  a  controversy 
that  has  lately  come  to  the  fore,  regarding  the  power  of  the  State  to  pre- 
vent certain  degenerate,  abnormal,  defective  and  criminally  inclined  per- 
sons from  bringing  children  into  the  world,  not  only  by  setting  up  a  diri- 
ment impediment  against  such  persons,  but  also  by  enacting  that  they  shall 
be  surgically  sterilised  by  the  operation  oi  vasectomy  oxfallectomy  ('). 

Laws  to  this  effect  have  already  been  passed  in  some  of  the  states  of  the 
United  States  of  America,  viz.,  in  Indiana  (*),  Utah,  Connecticut  and 
California.  The  controversy  has  also  raged  in  many  periodicals  (')  and  the 

privilege  of  the  communication  of  exemption ;  for,  it  might  well  happen  that  the 
respective  powers  might  be  so  strict  in  their  requirements  as  to  leave  no  room 
for  the  exercise  of  the  privilege  in  question. 

1.  Cf.  the  description  given  above,  in  no  143,  and  observe  that  in  the  operation 
of  vasectomy,  as  performed  on  a  man,  a  severance  is  made  of  the  vas  deferens 
only,  and  not  of  the  funiculus  spermaticus  ;  for,  care  is  taken  to  preserve  intact 
the  nerves,  veins  and  arteries  surrounding  the  vas  deferens.  See  the  description 
of  the  operation  given  by  Dr  O'Malley,  Eccles.  Review,  vol.  XLIV,  p.  687  ss., 
and  by  Gemelli,  La  Scuola  Cattolica,  vol.  XXI  p.  403  ss.  The  controversy  is 
confined  solely  to  vasectomy,  i.  e.,  as  performed  on  the  man. 

2.  In  that  State,  according  to  Dr  O'Malley,  Eccles.  Review,  vol.  XLIV,  p.  684, 
the  operation  of  vasectomy,  from  1907  to  the  end  of  1910,  was  performed  on 
about  800  men. 

3.  The  following  articles  have  reference  to  this  subject :  Donovan  (professor 
in  the  Franciscan  College  attached  to  the  University  of  Washington),  On  t/te 
lawfulness  of  a  certain  surgical  operation,  in  the  Ecclesiastical  Review,  vol.  XLII 
(1910),  p.  271  ss.,  cf.  ibtd.,  p.  599  ss.,  also  vol.  XLIV,  p.  571  ss.,  and  vol.  XLV, 
p.  313  ss. ;  Laboure  (professor  in  the  Seminary  in  San  Antonio),  On  Vasectomy, 
ibid.,  vol.  XLIII,  p.  80  ss.,  cf.  pp.  330  ss.  and  552  ss.,  likewise  vol.  XLIV,  p.  574 
ss.  and  vol.  XLV,  p.  355  ss. ;  Rigby  (professor  in  the  Dominican  College,  Rome), 
On  the  lawfulness  of  vasectomy,  ibid.,  p.  70  ss.  ;  Schmitt,  Vasectomia,  einen^ue 
Operation  und  ihre  Erlaubtheit,  in  the  Zeitschrift  fUr  Kath.  Theologie,  1911,  p.  66 
ss.  and  579  ss. ;  compare  with  Ecclesiastical  Review,  vol.  XLIV,  p.  678  ss.  and  vol. 
XLV,  p.  88  ss. ;  Ferreres,  De  Vasectomia  duplici  noviter  inventa,  in  the  Razony 
Fe,  t.  XXVII,  p.  374  ss.  ;  Gemelli,  (Doctor  of  Medicine  and  professor  of  Pas- 
toral  Theology),  De  liceitate  Vasectomiae,  in  the  Scuola  Cattolica,  t.  XXI  (1911), 


434  THE   REGULATION   OF   MARRIAGE 

wish  has  been  freely  expressed  that  the  American  practice  may  be  extend- 
ed to  other  countries  ('). 

We  have  no  hesitation  in  saying  that  such  laws  are  to  be  reprobated,  and 
that  the  State  has  no  right  to  enact  the  performance  of  the  above-mention- 
ed operations  by  public  authority. 

We  prove  this  thus  : 

Vasectomy  involves  a  serious  mutilation,  even  if  it  be  alleged  that  it 
does  not  induce  impotency  (^) ;  for,  this  operation,  however  light  it  may 
seem  in  itself,  deprives  a  man  of  the  physiological  function  of  fecundation. 

Now  the  social  authority  cannot  impose  a  serious  mutilation  on  its  sub- 
jects, except,  in  conformity  with  what  has  been  said  in  n°  219,  with  regard 
to  the  restriction  of  the  liberty  of  marrying,  in  so  far  as  that  is  necessary, 
either  i.  for  the  safeguarding  of  the  life  or  rights  of  individuals,  or  2.  for 
the  salvation  of  the  common  good  of  society,  and  that  either  by  punishing 
delinquents,  or  by  directly  defending  and  protecting  the  safety  of  society 
against  evil-doers  who  endanger  it.  Observe  here,  that  recourse  cannot  be 
had  to  mutilation,  except  where  no  other  and  milder  measure  is  available, 
and  so  the  amputation  of  an  organ  is  not  permissible,  where  it  is  clear  that 
the  restriction  of  the  use  of  the  same  is  sufficient. 

But  1.  recourse  cannot  be  had  to  vasectomy  for  the  protection  of  the  life 
and  private  rights  of  a  third  party,  e.  g.,  against  persons  suffering  from  a 
contagious  disease,  lest  they  should  bring  the  partner  into  grave  danger, 
or  against  those  guilty  of  assaulting  women  ;  for,  other  efficacious  means, 
preferable  to  mutilation,are  available,  such  as  preventing  them  from  marry- 
ing (n°  219),  or,  if  need  be,  depriving  them  of  their  liberty. 

Nor  can  the  State  resort  to  vasectomy  for  the  protection  of  the  right  of 
the  offspring,  so  that  it  may  not  come  into  existence  weakly  and  defective  ; 

p.  396  ss. ;  Stucchi,  ibid.,  p,  417  ss. ;  Eschbach,  ibid.,  t.  XXII,  p.  24353.; 
Capello,  ibid.,  p.  246  ss.  ;  De  Becker,  The  Casus  *  de  liceitate  Vasectomiae  »,  in 
the  Eccles.  Review,  vol,  XLII.  p.  474  s.  and  vol.  XLIII,  p.  356  ss.  ;  O'Malley 
(Doctor  of  Medicine),  Vasectomy  in  Defectives,  inthe  Eccles.  Rev.,  vol.  XLIV, 
p.  684  ss.,  and  compare  vol.  XI^VI,  p.  219  ss.  ;  Idem,  Inseminatio  ad  validum 
matrimonium  requisita,  ibid.,  vol.  XLVI,  p.  323  ss.  ;  Wouthrs,  De  Vasectomia, 
in  the  Nederl.  Kuth.  Stemmen,  19 11,  p.  19  ss.  Lastly  may  be  mentioned  the 
Theological  Consultation  of  Fathers  Vermeersch,  de  Villers  and  Salsmans, 
in  the  Eccles.  Review,  vol.  XLVI,  p.  475.  See  also  the  discussions  held  in  the  first 
International  Eugenics  Congress  (24-30  July  1912),  celebrated  in  London  by  the 
Eugenics  Education  Society. 

I.  Cf.  Zeitschr.f.  k.  Thcol.,  1911,  p.  66  s.,  and  Razony  Fe,  t.  XXVI,  p.  374  s.  ; 
cf.  also  t.  XXVIII,  p.  224  ss.,  t.  XXXI,  p.  495  ss.  and  t.  XXXII,  p.  222  ss.,  and 
compare  with  Eccles,  Rev.,  vol.  XLVI,  (1912),  p.  207  ss. 

3.  Whether  vasectomy  induces  impotency  in  a  man,  and  that  perpetual,  see 
below,  no  276. 


THE  REGULATION   OF  MARRIAGE  425 

for,  as  we  have  already  observed  above,  the  child  that  has  as  yet  no  being, 
has  no  rights,  and  for  the  child  itself,  it  is  better  that  it  should  be  w^eakly 
and  defective,  than  not  be  at  all. 

2.  As  regards  the  common  good  0/ society  : 

a/  Vasectomy  cannot  be  imposed  by  the  State  as  a  penalty  and  punish- 
ment. For,  considering  the  comparatively  painless  nature  of  the  operation, 
vasectomy  lacks  the  penal  character,  and  this  is  proved  by  experience, 
since  many  have,  by  their  own  free  choice,  submitted  themselves  to  the 
operation  (').  ^Moreover,  if  vasectomy  were  imposed  as  a  punishment,  its 
application  would  have  to  be  restricted  to  delinquents  and  criminals  strict- 
ly so  called. 

b/  Vasectomy  is  not  a  necessary  means  for  the  direct  protection  and 
defence  of  the  safety  of  society  against  evildoers,  where  it  is  a  question  of 
depriving  defectives  and  criminals  of  the  power  of  fecundation,  lest  the 
great  number  of  defective  children  should  imperil  the  very  existence  of 
society. 

For,  here  especially  holds  good  what  we  have  said  in  n°  2i9,namely,  that 
society  is  not  endangered  by  a  certain  number  of  defective  children,  which, 
in  a  State  otherwise  well  regulated,  will  always  be  comparatively  small. 
If,  however,  danger  should  arise  from  this,  it  could  be  met  in  other  ways  ; 
by  preventing  such  persons  from  marrying,  or,  if  that  cannot  be  otherwise 
effected,  by  putting  them  under  restraint  and  depriving  them  of  their 
liberty.  Moreover,  evil  dispositions  that  children  may  perchance  have  inhe- 
rited from  a  defective  father,  may,  to  a  great  extent,be  remedied  by  a  manly 
and  Christian  education  (*). 

Our  thesis,  therefore,  stands ;  and  we  find  that  most  authors  who  have 
treated  this  question  are  in  agreement  with  it  ('). 


1.  Dr  O'Malley,  in  the  Ecclesiastical  Review ,  vol.  XLIV,  p.  699  s.,  compare 
with  p.  742,  and  also  with  Schmitt,  in  the  Zeitschr,  f.  k.  Theol.,  1911,  p.  76. 

2.  Gerrard,  Tlie  Catlwlic  Church  and  Race  Culture,  in  the  Dublin  Review,  vol. 
149  (1911),  p.  63  ss. 

3.  De  Becker,  Eccles.  Review,  vol.  XLII,  p.  474  s.  and  vol.  XLIII,  p.  356  ss.  ; 
Vermeersch,Salsmans,De  ViLLERS,t6t^ew,  vol. XLII,  p. 475  ;  Schmitt , Zeitschr. 
f.  k.  Tlieol.,  1.  c,  and  Eccles.  Rev.,  vol.  XLIV,  p.  679  ss.  and  vol.  XLV,  p.  80  s. ; 
Ferreres,  Razony  Fe,  XXVII,  p.  378  s.  and  XXVIII,  p.  224  ;  Rigby,  1.  c.  ;  Drt. 
O'Malley,  Eccles.  Rev.,  vol.  XLIV,  p.  699  ss.  ;  Wouters,  1.  c.  ;  N.  R.  th.,  1.  c. ; 
Stucchi,  1.  c.  p.  479  ;  Capello,  1.  c,  p.  247  s.  ;  Eschbach,  1.  c,  343  ss.  ;  Ger- 
rard, 1.  c,  p.  58  s. ;  Rev.  Father  Keating,  the  opinion  of  whom  is  quoted  in  The 
Universe,  of  2  August  1913. 

The  guild  of  St.  Luke,  in  a  meeting  held  in  Liverpool,  24  July  1912,  expressed 
the  same  opinion,  by  emitting  unanimously  the  following  resolution  :  «That  in 
our  opinion,  the  proposals  to  sterilise  the  mentally  defective  members  of  the 


426  THE  REGULATION   OF   MARRIAGE 

If  the  State  were  recognised  as  having  the  power  to  make  and  enforce  a 
law  of  this  kind,  it  is  obvious  that  it  would  aftbrd  an  opening  for  grave 
abuses,  and  there  would  be  reason  to  fear  that, before  long, vasectomy  would 
be  employed  as  an  instrument  of  human  selection,  similar  to  that  made 
use  of  in  the  case  of  cattle  (*). 

Note.  The  question  as  to  how  far  vasectomy  may  be  permitted  and  per- 
formed by  private  authority,  is  treated  at  considerable  length  in  the  Collat. 
Brug.,  t.  XVII,  p.  543  ss.  The  following  is  a  summary  ol  it :  considering 
the  good  eftect  observed  in  those  of  an  erotic  disposition  :  viz.,  on  the  one 
hand,  the  preservation  of  erectability  and  activity  in  the  glands  of  the 
sexual  organism,  without  any  atrophy  of  the  testicles  ;  and,  on  the  other 
hand,  the  diminution  of  seminal  secretion,  and  so  of  cerebral  congestion 
also,  and  of  the  sexual  erethism  consequent  on  it,  it  seems  that  the  opera- 
tion of  vasectomy  may  be  permitted  in  the  case  of  a  one  who  is  abnormally 
and  pathologically  erotic,  for,  it  is  then  considered  to  make  immediately  for 
2i5c.  *^®  good  of  the  whole  body,  and  for  this,  mutilation  is  permissible. 
The  teackittg     Scholion  II.  The  teaching  of  Protestants  (*). 

Protestants  Luther  and  his  followers  teach  that  marriage  is  a  purely  secular  con- 
tract, and  consequently  solely  dependent  on  the  civil  authority  :  »  Since 
wedlock  is  altogether  a  secular  and  outward  thing,  like  wife  and  child, 
house  and  home, and  so  on, it  is  dependent  on  the  supreme  government  >  ('). 

According  to  them,  therefore,  it  belongs  to  the  State  to  prescribe  strictly 


community  are  opposed  to  every  principle  of  human  right  and  human  liberty,  and 
we  condemn  them  universally.  In  our  opinion  the  solution  of  the  problem  is  to 
be  found  in  attacking  the  causes  of  mental  deficiency  which  lie  in  the  defects  of 
our  social  organisation  ;  in  dealing  with  the  education  of  those  mentally  defec- 
tive on  Christian  and  elementary  lines  ;  in  preventing  by  segregation  in  suitable 
cases  the  multiplication  of  the  unfit ;  and  in  the  judicious  use  of  the  influence  of 
the  medical  man  in  directing  attention  to  the  dangers  attending  the  marriage  ot 
mentally  defective  persons  and  in  discountenancing  them  ».  Tlie  Universe, 
August  2, 1912. 

On  the  other  side  are  Laboure,  Eccles.  Review,  vol.  XLIII,  p.  80  ss.,  320  ss., 
vol.  XLIV,  p.  574.  ss.,  vol.  XLV,  p.  88  ss.  and  p.  355  ss.  ;  likewise,  with  a 
restriction,  Donovan,  Eccles.  Rev.,  vol.  XLII,  p.  271  ss.,  p.  599  ss.,  vol  XLIV,  p. 
571  ss.  and  vol.  XLV,  p.  313  ss.  The  same  thesis  has  been  vindicated  at  the 
Eugenics  Congress,  of  which  we  have  just  spoken,  namely  by  Dr.  Davenport, 
Director  of  the  Eugenics  Record  Office  of  the  United  States. 

1.  Cf.  Dr.O'MALLEY,  Eccles.  Rev.,  vol.  XLIV,  p.  705  ;  Schmitt,  Zeitschr.  f.  k. 
Th.,  1911,  p.  66  s.  and  77  ;  Donovan,  Ecchs.  Rev.,  vol.  XLV,  p.  317  s. 

2.  We  refer  in  particular  to  the  Protestants  of  Germany. 

3.  Realencyckl.,  XXI,  p.  863  ;  Friedberg,  Das  Recht,  p.  159  s.  and  198.  This 
power  of  the  lay  ruler  is  admitted  even  by  Protestant  authors  who  recognise 
the  sacred  nature  of  marriage,  like  Sohm,  o.  c,  p.  2. 


THE  REGULATION   OF  MARRIAGE  427 

requisite  formalities,  to  establish  impediments,  and  to  determine  the  causes 
of  dissolution  of  the  bond,  subject  only  to  the  divine  and  natural  law ;  conse- 
quently this  theory  admits  the  validity  and  legitimacy  of  all  marriages  that 
comply  vi^ith  the  civil  regulations,  provided  that  they  do  not  infringe  the 
natural  and  divine  law  ;  while,  on  the  other  hand,  all  marriages  that  are 
civilly  unlawful,  are  unlawful  also  in  conscience. 

Nevertheless,  the  Protestant  Church,  though  declaring  itself  incompetent 
in  principle,  does  in  fact  interfere  in  the  question  of  marriage  by  enforcing 
respect  for  its  theory.  Thus  : 

1.  It  prescribes  for  its  members  certain  religious  formalities,  but  tenders 
them  as  sanctioned  by  the  civil  law.  Before  the  introduction  of  civil  marri- 
age, these  formalities  were  generally  required  for  the  validity  of  the  con- 
tract (') ;  but,  since  that  time  they  serve  only  for  the  ecclesiastical  recogni- 
tion of  the  marriage,  and  for  the  official  registration  of  the  contract  already 
valid  Defore  the  civil  law  and  canonically  considered  as  such  («). 

2.  It  has  also  its  own  impediments,  but  they  do  not  possess  the  true  charac- 
teristics of  matrimonial  impediments,  especially  of  diriment  impediments, 
unless  sanctioned  by  the  divine  law  or  by  the  civil  authority.  Apart  from 
these  two  exceptions,  marriage  contracted  under  a  canonical  impediment 
is  regarded  by  it  as  valid  ;  the  only  effect  is,  that  a  minister  of  religion 
cannot  bless  such  marriages,  and  it  is  hoped  in  this  way  to  deter  believers 
from  them  {^). 

It  has,moreover,  so  to  speak,  established  its  matrimonial  law  on  the  lines 
of  the  civil  law,  especially  in  Germany  ;  and  it  has  barely  kept  one  or  two 
particular  impediments,  e.  g.,  disparitas  cultus,  which  it  has  succeeded 
in  maintaining  under  the  penalty  of  which  we  have  just  spoken  (*). 

3.  It  has  likewise  its  particular  causes  for  dissolution  of  the  bond  ;  but 
here  again  it  only  insists  on  respect  for  the  natural  and  divine  law  in  the 
causes  of  dissolution  admitted  by  the  civil  authority,  and  declares  unlawful 
and  without  effect  divorces  pronounced  contrary  to  the  divine  and  natural 
precepts.  In  other  respects  it  shows  itself  accommodating,  and  follows  the 
State  in  its  laxity  with  regard  to  divorce.  Cf.  the  Realencyckl.,  t.  XXI,  under 
Scheidungsrecht ;  Roedenbeck,  o.  c,  p.  129  ss. 

4.  Finally,  the  Protestant  Church  has  its  ecclesiastical  tribunal,  the  con- 
sistory, which  decides  religious  matrimonial  causes  in  accordance  with  the 
principles  mentioned  above. 


1.  Realencyckl.,  V,  p.  303  s.  ;  Friedberg,  DasRecht,^.  273  s.,  300-305  ;  Sohm, 
Das  Rccht,  p.  254  and  367  s. 

2.  Realencyckl.,  V,  p.  206. 

3.  Ibid.,  p.  298. 

4.  Ibid.,  p.  211  s. 


428  THE  REGULATION  OF  MARRIAGE 

Note.  Though  it  is  the  only  logical  one,  all  Protestants  do  not  admit  this 
theory  of  the  purely  declaratory  value  of  their  religious  marriage.  Some  of 
them,  like  Sohm  and  Roedenbeck,  in  conformity  with  their  opinion  as  to 
the  nature  of  marriage  in  the  Protestant  law  (see  above,  at  the  end  of  n°  60, 
in  note),  consider  the  religious  ceremony  as  a  constituent  element  of  marri- 
age. From  their  point  of  view,  the  civil  marriage  is  merely  an  inceptive 
union,  a  simple  consensual  contract,  to  be  perfected  by  a  real  and  effective 
possession,  which  takes  place  by  means  of  the  religious  formalities  ('). 

Cf.  Sohm,  Das  Recht,  p.  284-314,  especially  p.  289  s.  ;  Trauung  und 
Verlohung,  p.  146  s.  ;  Roedenbeck,  o.  c,  p.  34-37  ;  Friedberg,  Verio- 
bung  und  Trauung,  p.  70-78,  is  of  a  contrary  opinion  ;  likewise  Ebeling, 
p.  62  s.  and  66-68.  Consult  also  Vering,  o.  c,  p.  881  s.,  Wernz,  o.  c, 
n.  207,  note  345. 


Supplement  I 


ECCLESIASTICAL  REGULATION  OF  MARRIAGE  AND  ITS 

HISTORY. 

ne. 

Historical       First  Period  ('). 

phases.  j^^  ^j^^  ^^.^^  centuries  of  the  Christian  era,  marriage  was  considered  by  the 

The  Church  civil  power  as  a  purely  secular  contract,  and  was  treated  as  such.  The  lay 
acauifedflie  ^^^^ority  regulated  it,  made  laws  for  it,  and  exercised  jurisdiction  over  it 
soleregula-   independently  of  the  ecclesiastical  power. 

Christian  ^^^®  ^^  ^^^^  'w'l^h.  civil  marriage,  there  was  religious  marriage,  the  only 
marriage ;  true  one  in  the  eyes  of  the  faithful.  This  was  governed  by  the  laws  of  the 
Church  (').  Thence  arose  a  dualism,  a  twofold  and  distinct  legislation  and 
jurisdiction,  giving  rise  to  frequent  conflicts  between  the  civil  and  eccle- 
siastical courts.  These  conflicts  the  Church  endeavoured  to  avoid  as  far  as 
possible,  partly  by  conforming  its  law  to  the  law  of  the  State,  whose  pre- 
scriptions it  adopted  and  sanctioned  (*),  and  partly  by  striving  to  bring  the 
civil  law  to  respect  the  law  of  the  Church  (»). 


1.  DiECKHOFF,  o.  c,  p.  296-320,  advances  an  opinion  that  takes  a  middle 
course  between  the  other  two. 

2.  This  historical  notice  has  special  reference  to  Belgium. 

3.  Cf.  ScHNiTZER,  o.  c.,p.  40.  Thus  S.  Jerome,  in  Episiola  LXXIII  ad  Oceanum 
says  :  «  Aliae  sunt  leges  Caesarum,  aliae  Christi ;  aliud  Papianus,  aliud  Paulus 
noster  praecipit  »,  in  Migne,  t.  XXII,  p.  6gi. 

4.  Cf.  KosTLER,  O.C.,  p.  73-76  ;  ScHNiTZER,  O.C.,  p.  4!  s.,collato  Cap.  I,  Dist.X, 
and  below,  n.  350. 

5.  This  is  how  so  many  prescriptions  of  the  canon  law  came  to  be  inserted  in 
the  civil  law.  Thus,  if  the  Church  borrowed  some  of  its  earlier  matrimonial  laws 


THE  REGULATION  OF  MARRIAGE  429 

Second  Period.  Stage  of  transition  to  exclusive  regulation  by  the 
Church. 

Under  the  impulse  and  influence  of  the  Church,  the  civil  law  sanctioned 
and  adopted  more  and  more  the  prescriptions  of  the  canon  law,  so  as  to 
become  in  complete  agreement  with  it. 

In  spite  of  this  agreement,  the  canon  and  civil  law  remained  distinct, 
and  each  had  its  separate  court ;  but  by  degrees  it  came  to  pass  that  all 
matrimonial  causes  were  brought  before  the  ecclesiastical  judges  only, 
and,  when  the  parties  did  not  appeal,  the  civil  authority  abided  by  their 
decisions.  Thus  these  causes  were  gradually  withdrawn  from  the  civil 
jurisdiction,  and  in  the  end  only  the  ecclesiastical  courts  were  considered 
competent. 

The  weakness  of  the  royal  power  in  the  presence  ol  the  growing  autho- 
rity of  the  Church  greatly  favoured  this  development,  and  thus  from  the 
tenth  century  begins  the 

Third  Period.  Exclusive  regulation  by  the  Church,  (X-XV  cent.). 

At  this  epoch  the  Church  enjoyed  to  the  full  its  integral  power,  both 
legislative  and  judicial,  over  the  marriages  of  the  faithful;  moreover,  in 
consequence  of  the  weakness  of  secular  rulers,  there  were  brought  before 
the  ecclesiastical  courts  not  only  matrimonial  causes  properly  so  called, 
that  is  to  say,  such  as  concern  the  marriage  bond  and  its  inseparable 
effects,  but  even,  during  a  certain  time,  those  causes  that  relate  to  the 
purely  civil  effects,  and  naturally  belong  to  the  lay  courts. 

Fourth  Period.  Interference  of  the  Civil  Power  (XV-XVIIl  cent.).  but  t/te  State 

The  interference  of  the  civil  authority  was  at  first  purely  practical,  res-  *"^^"J'?'^*>' 
pecting,  and  legally  recognising  the  exclusive  competence  of  the  Church ;  diction  over 
but  gradually  it  came  to  be  admitted  in  law.  marrtage  : 

1.  Practical  interference.  a)  by  way  (^ 

The  heads  of  the  State  began  by  resuming  their  right  to  regulate  the   •  Pf^y^'^'' 

o        J  o  o  o  tnterjerence ; 

purely  civil  effects,  and  of  judging  matrimonial  causes  under  this  aspect. 
Gradually  they  overstepped  these  limits,  and  usurped  authority  in  the  mat- 
ter of  marriage,  beginning  with  the  judicial  power  and  finally  arrogating 
to  themselves  the  legislative  power. 

a/  With  regard  to  the  judicial  power  :  under  pretext  of  passing  judgment 
relative  to  the  purely  civil  effects,  they  endeavoured,  at  first,  insidiously  to 


from  the  ancient  Roman  law,  the  later  Roman  law  in  its  turn  took  many  of  its 
provisions  from  the  Church.  Cf.  Troplong,  o.  c.  ;  Laurin,  o.  c,  p.  261  s. ;  KosT- 
LER,  o.  c,  p.  69  ;  Bernard,  o.  c,  p.  71.  To  take  but  a  single  example,  the  impe- 
diment of  affinity  in  the  collateral  line  was  unknown  to  the  ancient  Roman  law, 
but  it  was  borrowed  at  a  later  period  from  the  canon  law,  as  Caron  very  well 
shows,  o.  c,  p.  61  ss. 


430  THE  REGULATION   OF  MARRIAGE 

take  cognizance  of  causes  that  concerned  the  conjugal  bond  itself  (*) ;  then, 
by  means  of  the  so-called  «  appel  comme  d'abus  »,  they  interfered  in  a 
multitude  of  causes  already  decided,  or  awaiting  decision  before  the  eccle- 
siastical courts  (2). 

b/  With  regard  to  the  legislative  power  :  they  issued  a  number  of  decrees 
on  marriage,  the  greater  part  in  conformity  with  the  canon  law,  though 
some  were  in  opposition  to  it,  under  the  pretext  that  certain  canonical 
provisions  infringed  the  Gallican  liberties,  or  appeared  incomplete.  Such 
were  the  various  decrees  promulgated  in  France  with  regard  to  clandestine 
marriages  {'),  or  those  contracted  without  parental  consent  (').  This  inter- 
ference showed  itself  at  first  only  in  practice  ;  theoretically  the  civil  autho- 
rity recognised  the  exclusive  competence  of  the  Church,  both  in  the 
judicial  and  in  the  legislative  order  (*)  ;  it  was  only  indirectly  and  surrep- 
titiously that  the  State  actually  usurped  a  share  in  the  regulation  of  marri- 
age (6). 
b)  by  way  of      2.  Judicial  interference. 

judicial  g^*   ^|.  ^  later  date,  the  so-called  civil  or  Gallican  theory  claimed  judi- 

tnterference,  '  '  j  j 

cially,  and  as  its  proper  right,  practical  interference  on  the  part  of  the 

State,  by  drawing  a  distinction  between  the  sacrament  and  the  contract, 

and  treating  this  as  a  civil  contract  ("). 


I.  Cf.  Lemaire,   o.  c,   p.  32  ;   Esmein,    o.  c,  p.  36-42  ;  Lafourcade,  o.  c, 
p.  196  ss. ;  Dumas,  o.  c,  p.  55  ;  Kisselstein,  o.  c,  p.  511  ss. 
3.  Kisselstein,  ibidem. 

3.  Lemaire,  o.  c,  p.  49  ss.  ;  Desforges,  o.  c.  p.  134  ss. 

4.  Bernard,  o.  c,  p,  106-147. 

5.  Cf.  Desforges,  o.  c,  p.  124  ss. 

6.  Thus  in  the  case  of  €  appd  comme  d'abus  »  the  public  authorities  did  not 
settle  the  causes  as  if  they  had  been  illegally  decided,  but  referred  them  to  some 
other  ecclesiastical  authority. 

Thus  again  in  the  civil  prescriptions  requiring  parental  consent,  Bernard, 
o.  c,  p.  13  s.  and  p.  135  s.,  shows  how  the  kings  of  France  prohibited  at  first 
under  different  sanctions  marriages  contracted  without  this  consent,  not  for  the 
purpose  of  thwarting  the  legislation  of  the  Church,  or  of  passing  laws  in  oppo- 
sition to  it,  but  in  order  to  supply  the  omissions  of  the  Canons,  while  fully  re- 
specting the  validity  of  the  conjugal  bond  recognised  by  the  Church.  Even  in  the 
sequel,  when  they  had  decreed  the  nullity  of  such  marriages,  they  still  endea- 
voured to  justify  their  action  by  maintaining  that  such  unions  were  canonically 
invalid  on  account  ot  the  impediment  oi  raptus.  Sqq  below,  n"  250;  Planiol, 
o.  c,  I,  no  1060  ;  Lafourcade,  o,  c,  p.  187  ;  Desforges,  o.  c,  143  s.  ;  Van- 
Troys,  o.  c,  p.  209-304. 

7.  See  above,  no  219.  But  observe  this  twofold  constituent  element  of  the 
civilist  doctrine  :  the  distinction  of  the  contract  from  the  sacrament,  and  the 
civil  character  of  the  former.  The  sole  distinction  between  the  contract  and  the 


THE  REGULATION   OF  MARRIAGE  43I 

According  to  this  theory,  marriage  comprises  two  elements  :  the  contract, 
which  is  of  itself  civil,  and  the  sacrament  (').  Consequently  the  civil  ruler 
has  a  perfect  right  to  claim,  not  an  exclusive,  but  a  partial  authority  over 
marriage,  i.  e.,  over  the  contract,  but  ought  to  leave  to  the  Church  the 
regulation  of  the  sacrament.  The  Galilean  authors  who  defended  this  theory 
therefore  attributed  to  the  king  the  power  to  r-egulate  marriage  as  a  con- 
tract, and  to  set  up  impediments  to  the  matrimonial  contract.  They 
acknowledged,  however,  that  the  Church  had  the  power  of  regulating  the 
sacrament,but  not  the  contract,and  they  accordingly  denied  to  it,in  fact,  the 
power  of  setting  up  impediments,  at  least  diriment  impediments,  since  these 
cannot  directly  affect  the  sacrament,  but  only  the  contract ;  and  therefore 
ecclesiastical  impediments  had  no  effect  upon  the  nuptial  contract,  except 
in  so  far  as  they  were  sanctioned  and  adopted  by  the  civil  authority  (2). 

There  was,  however,  as  yet  no  question  oi  civil  marriage.  The  State  still 
regarded  marriage  as  a  civil-religions  act,  civil  by  reason  of  the  contract, 
religious  by  reason  of  the  sacrament  connected  with  it ;  it  consequently  con- 
sidered that  the  two  powers  ought  to  take  part  in  the  regulation  of  it,  and 
that  in  the  celebration  of  marriage, it  was  necessary  to  take  into  account  the 
twofold  regulation,  the  civil  and  the  canonical  ('). 


sacrament,  according  to  Billuart  and  Melchior  Canus,  does  not  justify,  as  we 
have  observed  above,  no  2i6,  the  conclusion  of  the  Galileans  as  to  the  power  of 
the  Prince  of  regulating  the  marriage  contract. 

I,  This  distinction  can  be  understood  in  different  ways.  Nuitz  considers  it  as 
adequate,  Melchior  Canus  as  inadequate  ;  Billuart  maintains,  and  PoxmER 
appears  to  follow  him,  that  the  contract  constitutes  the  whole  of  the  sacrament 
and  serves  as  its  base,  but  can  nevertheless  exist  without  it. 

3.  «  Le  manage  n'etant  soumis  a  la  puissance  ecclesiastique  qu'en  tant  qu'il 
est  sacrement,  et  n'etant  aucunement  soumis  a  cette  puissance  en  tant  que  con- 
trat  civil,  les  empechements  que  I'Eglise  6tablit,  seuls  et  par  eux-memes,  ne 
peuvent  concerner  que  le  sacrement,  et  ne  peuvent  seuls  et  par  eux-memes, 
donner  atteinte  au  contrat  civil.  Mais  lorsque  le  prince,  pour  entretenir  le  con- 
cert qui  doit  etre  entre  le  sacerdoce  et  I'empire,  a  adopte  et  fait  recevoir  dans 
ses  Etats,  les  canons  qui  etablissent  ces  empechements,  I'approbation  que  le 
prince  y  donne  rend  les  empechements  etablis  par  ces  canons,  empechements 
dirimants  de  mariage,  meme  comme  contrat  civil  >.  Pothier,  o.  c,  no  20. 

3.  Pothier,  o.  c,  n.  19,  says  :  «  Le  mariage  6tant  contrat  et  sacrement,  s'il 
est,  en  tant  que  contrat,  soumis  aux  lois  s^culieres,  il  est,  en  tant  que  sacrement, 
soumis  aux  lois  de  I'Eglise  ».  According  to  the  Gallicans, marriage  between  Chris- 
tians, celebrated  in  conformity  with  the  secular  laws,  was  valid  as  a  contract, 
but  still  imperfect  and  incomplete,  even  before  the  civil  law  ;  it  was  necessary 
that  it  should  be  raised  by  the  Church  to  the  dignity  of  a  sacrament.This  is  why, 
they  said,  the  Kings  of  France,  wishing  that  the  marriage  of  Catholics  should  be 
perfect  in  every  respect,  required  as  a  condition  for  validity  of  the  contract  that 


432  civil,  MARRIAGE 


Fifth  Period. 


until  the        The  French  revolution  introduced  obligatory  civil  marriage,  and  com- 
'"  o/civil^**  pletely  usurped  the  regulation  of  it,  to  the  entire  exclusion  of  the  Church. 
marriage.    We  shall  now  speak  of  this  in  supplement  II. 


civil 
marriage 


Supplement  II 

CIVIL  MARRIAGE. 

Meaning  of  Civil  marriage  may  be  said  to  be  any  marriage  whatever  that  is  regulat- 
ed by  civil  authority,  i.  e.,  that  is  subject  to  the  legislation  and  jurisdiction 
of  the  State,  whether  celebrated  with  religious  formalities  recognised  by 
the  State,  or  with  simply  civil  formalities. 

Generally,  however,  the  term,  civil  marriage,  is  reserved  for  that  which 
is  not  only  regulated  by  the  civil  authority,  but  is  also  civilly  celebrated, 
without  the  intervention  of  any  religious  body,  as  if  it  were  something 
merely  profane  ;  while  that  marriage  which,  though  regulated  by  civil 
authority,  is  nevertheless  celebrated  with  religious  solemnities,  and  as 
such  is  recognised  as  valid  by  the  State,  is  still  commonly  called  religious 
marriage,  though  the  marriage  is  not,  in  the  strict  sense,  religious  except 
in  so  far  as  it,  at  the  same  time,  remains  subject  to  the  regulation  of  the 
religious  authority. 

Civil  marriage  may  exist  under  various  form  : 

1.  Under  the  obligatory  form  (Zwangcivilehe  or  obligator ische  Civil- 
ehe),  where  imposed  indiscriminately  on  all  who  wish  to  be  regarded  as 
married  before  the  civil  law  and  treated  as  such.  If  they  wish  also  to  be 
united  before  the  Church,  they  are  free  to  do  so,  but  the  State  recognises 
no  effect  in  the  religious  ceremony,  and  regards  it  as  a  private  matter  pro- 
ducing no  effect ;  in  certain  countries  it  is  unlawful  to  go  through  the  reli- 


it  should  take  place  before  the  priest ;  he  was  at  the  same  time,  in  the  eyes  of  the 
civil  law,  the  minister  of  the  contract,  acting  in  the  name  of  the  king,  and  the 
minister  of  the  sacrament,  acting  in  the  name  of  the  Church.  Portalis  himself 
says  :  «  Anciennement  le  mariage  6tait  c61^br6  devant  le  propre  cure  des  parties, 
qui  etait  k  la  fois  ministrc  du  contrHt,  au  nom  de  I'Etat,  ct  ministre  du  sacre- 
ment,  au  nom  de  I'Eglise  ».  Cf.  also  the  celebrated  letter  of  the  Chancellor  de 
Pontchartrain,  of  1713,  in  Friedberg,  Das  Recht,  p.  549  s„  in  note. 

The  civil  marriage  was  not  even  that  which  was  introduced  into  Austria  under 
Joseph  II,  in  1783  ;  it  was  rather  a  practical  application  of  the  civilist  doctrine, 
that  we  have  described.  Cf.  Friedberg,  o.  c,  p.  142  ss.;  Esmbin,  o.  c,  I,  p. 45  s.; 
Apologie  du  mariage  chretien,  and  compare  with  what  has  been  said  above 
in  no  219. 


228. 


CIVIL  MARRlAGfi  433 

gious  ceremony  before  the  civil  marriage  has  taken  place.  This  is  civil 
marriage  wholly  secularised. 

2.  Under  the  optional  form  (Facultative  Civilehe),  where  people  are  free 
to  marry  either  with  the  civil  or  religious  form,  and  both  the  one  and  the 
other  are  admitted  as  valid  by  the  civil  authority. 

3.  Finally  under  the  form  of  Nothcivilehe,  i.  e.,  where  the  State  admits 
civil  marriage  as  lawful  for  those  only  who  do  not  possess  religious  marri- 
age, such  as  infidels,  atheists  and  dissidents,  or  for  those  who  are  inca- 
pable of  contracting  a  religious  marriage  ;  while  all  others  are  bound  to  go 
through  the  religious  form  of  marriage  ('). 

The  regime  of  obligatory  civil  marriage  was  introduced  into  France  by    Historical 
the  Legislative  Assembly  in  1792,  but  the  ground  had  been  prepared  for  it    .  Phases 
long  before.  We  shall  speak  in  the  first  place  of  this  preparation,  and  then 
of  the  introduction  of  civil  marriage.   We  shall  then  briefly  describe  and 
criticise  the  matrimonial  legislation  of  Belgium,  and  afterwards  draw  our 
conclusions. 

I.  The  preparation. 

1.  The  real  cause  that  brought  about  the  introduction  of  civil  marriage  Cause  of  the 

was  the  Philosopkism  of  the  eighteenth  century,  and,  going  back  to  an  *"*^odtfctton 

earlier  date.  Protestantism.  These  two  errors  in  particular  gave  rise  to  the    marriage, 

idea  of  secular  marriage  entirely  dependent  on  the  State  (^),  that  takes  its    .  ***   f"^ 

°  /       r  \  /'  ctrcumstancei 

practical  form  in  civil  marriage.  that 

2.  Two  circumstances  favoured  its  introduction.  The  one,  theoretical,   f^^'^"*'^'*  "• 
was  the  diftusion  of  the  civilist  doctrine  of  marriage,  distinguishing  between 

the  contract  and  the  sacrament ;  the  other,  practical,  was  the  establishment 
of  civil  marriage  for  Protestants,  in  virtue  of  the  celebrated  royal  decree  of 
1787. 

The  civilist  theory,  especially  in  view  of  the  doctrines  of  the  seven- 
teenth century,  readily  permitted  the  conclusion  that  the  State  could  ignore 
the  sacrament,  and  confine  itself  to  the  single  element  of  the  contract, 
abstracting  firom  the  other  ;  but  abstraction  easily  led  to  negation. 

Undoubtedly  the  Galilean  theory  did  not  logically  imply  civil  marriage  ; 
the  distinction  between  the  sacrament  and  the  contract,  even  if  this  were 
said  to  be  of  a  civil  character,  did  not  compel  one  to  say  that  marriage  is  a 
purely  civil  contract  ;  and  this  is  why  we  do  not  say  that  this  theory  was 
the  cause  of  the  introduction  of  civil  marriage. But  it  rendered  more  easy  the 


1.  Cf.  HoLLWECK,  o.  c,  p.  39-42,  who  makes  a  distinction  between  relative  md 
absolute  Nothcivilehe. 

2.  See  the  doctrine  of  Luther  and  Calvin,  given  above  in  nos  56,  96  and  325b  ; 

HoLLWECK,  O.  C,  p.  6  S.  ;  BoCKENHOFF,  O.  C,  p.  II3. 

a 


434  CIVIL   MARRIAGE 

transition  made  under  the  influence  of  philosophism,and  the  defenders  of  the 
civiUst  doctrine  found  themselves  disarmed  in  the  face  of  this  develop- 
ment (•). 

The  edict  of  1787  was  issued  to  avoid  the  inconveniences  of  the  existing 
law  (-),  which  obliged  Protestants,  like  other  people,  to  marry  before  the 
Catholic  parish  priest.  The  edict  permitted  them  to  contract  marriage 
without  any  religious  form  and  without  the  presence  of  the  Catholic  priest ; 
they  were  able  to  marry  in  their  own  way,  provided  the  parties  made  a 
declaration  before  the  parish  priest  or  the  civil  judge  for  the  purposes  of 
legal  proof  (^). 

This  was  far  from  being  the  secularisation  of  marriage,  or  the  regime  of 
civil  marriage  strictly  so  called  and  obligatory.  The  State  still  considered 
marriage  as  a  religious,  or  rather  as  civil-religious  contract,  as  we  have 


1.  How  much  better  would  they  have  been  able  to  resist  the  philosophers,  who 
endeavoured  to  destroy  the  sacred  character  of  marriage,  had  they  been  in  a 
position  to  urge  against  them  the  true  Catholic  doctrine,  and  to  vindicate  the 
identity  of  the  contract  and  the  sacrament !  As  Lemaire  says,  o.  c,  p.  98  : 
«  Alors  que  les  protestants  niaient  le  caractere  sacramentel  du  mariage,  alors 
que  les  philosophes  niaient  meme  son  caractere  sacre  et  religieux,  il  eut  fallu 
une  doctrine  de  tradition  ferme,  une  theologie  solide  et  resistante,  c'est-a-dire 
tout  le  contraire  de  ce  qu'etait  le  Gallicanismc.  Si  done  nous  n'accusons  pas  la 
doctrine  Gallicane  d'avoir  6\.€  la  source  directe  du  mariage  civil,  nous  disons 
formellement  qu'elle  en  a  favoris^  I'avenement  d'une  fa9on  extraordinaire.  Elle 
n'a  pas  donne  le  mariage  civil  a  la  France  catholique,  mais  elle  a  livr6  la  France 
catholique  au  mariage  civil  ». 

2.  Cf.  Planiol,  o.  c,  I,  no  845  s. 

3.  The  situation  of  the  Protestants  before  the  edict  of  1787  was  truly  inextri- 
cable. On  the  one  side,  since  the  revocation  of  the  Edict  of  Nantes  (1685),  their 
religion  had  been  proscribed  in  France,  and  all  subjects  were  in  law  presumed  to 
be  Catholics  ;  moreover,  the  law  recognised  for  marriage  only  the  form  of  the 
Council  of  Trent,  requiring  the  presence  of  the  Catholic  parish  priest.  On  the 
other  side,  the  Catholic  parish  priests  refused  to  admit  Protestants  to  marri- 
age, as  they  regarded  it  as  a  profanation  of  the  sacrament.  It  was,  therefore, 
impossible  for  Protestants  to  contract  a  marriage  that  was  legally  valid,  unless 
they  became  converts  to  Catholicism.  In  fact,  for  the  most  part  they  simulated 
conversion.  Others  went  abroad  to  marry,  or  «  au  desert  »,  as  they  said,  that  is 
to  say,  they  went  to  the  secret  and  retired  places  where  they  held  nocturnal 
meetings  with  their  co-religionists,  and  where  the  Protestant  minister  officiated 
at  the  marriage.  But  these  marriages  had  no  legal  value,  and  those  who  con- 
tracted them  ran  the  risk  of  prosecution  ;  moreover,  if  the  parties  lived  as  hus- 
band and  wife  under  these  conditions,  they  were  liable  to  the  penalties  enacted 
against  concubinage.  The  whole  of  this  question  is  treated  at  length  in 
BoNiFAS,  o.  c,  p.  92-170,  and  Desforges,  o.  c,  p.  183-243. 


CIVIL  MARRIAGE  '435 

already  observed.  If  it  required  on  the  part  of  Protestants  only  the  simple 
fulfilment  of  the  civil  formalities,  this  was  but  a  concession  rendered  neces- 
sary for  the  regularising  of  their  position  before  the  civil  law ;  it  was  a  kind 
of  Nothcivilehe.  But  the  way  was  nevertheless  opened  by  it,  and  it  afforded 
a  sample  of  civil  marriage  which,  at  a  later  period,  was  to  become  binding 
onall('). 

Thus  these  two  circumstances,  of  which  we  have  just  spoken,  prepared 
the  ground  theoretically  and  practically  ;  as  Lemaire  says,  o.  c,  p.  89, 
«  The  Gallican  doctrine  was  the  theoretical  antecedent  of  civil  marriage, 
and  the  edict  of  Louis  XVI  the  practical  antecedent  >. 

3.  The  form  of  transition  from  the  Gallican  doctrine  to  the  idea  of  civil 
marriage  is  apparent  in  the  text  of  art.  7,  tit.  II,  of  the  French  Constitution 
of  1791 :  «  La  loi  ne  consider e  le  mariage  que  comme  contrat  civil  ». 

Though  they  distinguished  the  one  from  the  other,  the  Gallicans  took 
both  elements  into  account  conjointly,  and  taught  that  marriage  ought  to 
be  regulated  by  the  two  powers  at  the  same  time  and  concordantly.  The 
constitution  of  1791  does  not  deny  the  sacramental  character  of  marriage, 
it  even  recognises  it  implicitly  (*),  but  \i  abstracts  from  it;  it  ignores  it, 
and  declares  that  it  is  necessary  to  legislate  in  the  matter  of  marriage  as  if 
it  were  a  purely  civil  aftair,  without  troubling  about  its  sacred  character. 
A  little  later  we  shall  find  that  marriage  is  called  a  purely  civil  contract, 
and  its  sacred  character  denied. 

II.  The  introduction  of  civil  marriage. 

Civil  marriage,  in  its  obligatory  form,  was  introduced  by  the  Legislative  Circumstan- 
Assembly  in  1792.  Carrying  out  art.  7  of  the  Constitution,  it  decreed  that  Jj^iJfl^n  ^^ 
marriage  should  be  civilly  contracted  by  all  citizens,  as  a  purely  civil  con-    introduced 
tract.  Far  from  limiting  itself,  like  art.  7  of  the  Constitution,  to  an  abstraction 
from  the  sacred  character  of  marriage,  the  Assembly  denied  it  absolutely. 


1.  «  La  nouvelle  declaration  de  mariage  institu6e  par  I'Edit  de  1787  ne  pout 
etre  regardce  commc  I'inauguration  du  mariage  civil... ;  elle  n'est  que  la  conse- 
cration inconsciente  du  Gallicanisme.  Seulement...  la  forme  en  laquelle  elle  se 
trouve  ainsi  consacree  est  telle,  qu'elle  pourra  servir  presque  sans  changement 
pour  le  mariage  civil  ».  Lemaire,  o.  c,  p.  89  ;  see  also  Basdbvant,  o.  c,  p.  181, 
who  quotes  the  words  oi  Diirand  de  Maillane. 

2.  The  text  originally  proposed  was  rejected  ;  it  reads  :  «  La  loi  ne  reconttaii 
le  mariage  que  comme  contrat  civil  ».  Durand  de  Maillane,  who  drew  up  article 
7,  still  adhered  to  the  Gallican  theory,  which  maintained  the  sacred  character 
of  marriage  ;  his  words,  quoted  by  Basdevant,  o.  c,  p.  177-180,  bear  witness 
to  this.  As  we  shall  state  later,  the  terms  of  the  clause  requiring  the  precedence 
of  (he  civil  formalities  speak  in  the  same  sense. 


43^  CIVIL  MARRIAGE 

and  recognised  in  the  nuptial  contract  only  the  character  of  a  purely  secu- 
lar contract.  This  is  clear  from  the  declaration  of  Muraire,  the  promoter  of 
the  law  ('),  and  from  the  text  of  the  law  (-),  no  less  than  from  the  whole  of 
the  subsequent  legislation  on  marriage,  which,  as  we  have  seen,  sanctioned 
the  principle  of  the  dissolubility  of  marriage  at  the  will  of  the  contracting 
parties,  just  as  in  the  case  of  other  civil  contracts. 

Nevertheless,  the  reformers  did  not  go  so  far  as  to  exclude  the  parallel 
existence  of  canonical  marriage.  Before  the  civil  courts,  civil  marriage  was 
sufficient,  valid  and  complete  in  itself,  independently  of  any  sacred  charac- 
ter (and  in  this  they  went  beyond  the  Gallican  idea  and  the  formula  of  the 
Constitution)  ;  but  they  left  Catholics  free  to  contract  another  marriage 
before  the  Church,  and  recognised  their  right  not  to  consider  civil 
marriage  as  valid  in  conscience. 

They  thereby  recognised  and  introduced  in  the  case  of  Catholics  a  two- 
fold marriage,  parallel  and  independent :  the  one,  civil,  for  the  civil  forum, 
and  the  other,  religious,  for  the  forum  of  the  Church  and  of  conscience. This 
was  dualism  (^). 

In  the  sequel,  the  pseudo-legislators  of  1795  and  1797  went  further.  They 
endeavoured  to  exalt  and  solemnize  civil  marriage  in  such  a  way  as  to 
make  it  take  the  place  of  religious  marriage  even  for  Catholics.  Their 
object  was  to  depose  the  religious  contract,  and  so  secularize  marriage 
completely.  For  this  purpose,  by  the  laws  of  1795  and  1797  (3  Brum,  de 
I'an  IV  and  13  Fructidor  de  I'an  VI),  they  instituted  various  solemnities 
and  ceremonies  for  the  celebration  of  civil  marriage,  to  take  the  place 
of  the  religious  ceremonies  (*).  Subsequently,  however,  those  who 
drew  up  the  Civil  Code  thought  it  better  to  return  to  the  law  of  1792  ;  on 
the  one  hand,  they  retained  the  purely  civil  marriage,  with  its  exclusively 
secular  celebration  devoid  of  all  sacred  character,  but,  on  the  otlier  hand, 


I.  Cf.  Lemaire,  o.  c,  p.  98. 

a.  Ibid.,  p.  104,  where  the  preamble  of  the  law  of  divorce  is  given. 

3.  Thus  one  and  the  same  person,  e.  g.,  a  Catholic,  would  have  to  contract  a 
distinct  twofold  marriage  in  order  to  be  lawfully  married  in  the  eyes  of  the  State 
and  of  the  Church. 

4.  For  the  details,  see  Lemaire,  o.  c,  p.  108-112.  See  also  p.  102,  where  he 
observes  that,  in  1792,  Gohicr  had  unsuccessfully  made  a  similar  proposition  to 
the  Legislative  Assembly.  And  yet  at  the  present  day,  in  the  midst  of  our 
Catholic  population,  there  are  officiers  d'Hat  civil  who  make  themselves  ridicu- 
lous by  reviving  these  ceremonies  !  Cf.  the  Bicn  Public,  29  Feb.,  5  and  7  March 
1908. 


CIVIL  MARRIAGE  437 

they  did  not  exclude  the  parallel  existence  of  another  marriage  for  Catho- 
lics (1),  independent  of  the  former  (2). 

S29. 
Note.  1.  In  many  countries  matrimonial  legislation  and  jurisdiction,   Regulations 

in  respect  of  Christians,  have  been  usurped  by  the  civil  power,  and  the    *"/°^^'« 
regulation  ot  marriage  has  been  taken  away   from  the  religious  body.        tries. 
Civil  marriage,  however,  is  not  ever}'where  in  force  in  its  obligatory  form, 
but  in  many  places  religious  celebration  is  recognised, so  that  civil  marriage 
prevails  only  in  its  optional  form  or  in  its  Nothcivilehe  form. 

Thus,  a/  civil  marriage  in  its  obligatory  form  (Zwangcivilehe),  together 
with  the  dualism  that  flows  from  it,  exists  not  only  in  Belgium,  but  also  in 
many  other  countries  :  in  Holland  ('),  Germany  (*),  Switzerland,  Hungary 
(1895),  Italy,  and  in  most  of  the  South  American  States  (^). 

b/  In  other  countries  there  exists  the  facultative  Civilehe  (optional  civil 
marriage),  so  that  each  can  choose  between  the  two  forms  of  marriage. 
This  is  the  case  in  England  («),  and  in  many  of  the  North  American 


I.  It  seems  that  even  Portalis,  who  was  one  of  the  principal  persons  engaged 
in  the  drawing  up  of  the  Code,  was  at  one  time  borne  towards  the  Galilean 
theory  or  rather  towards  the  formula  of  the  Constitution  of  1791  :  marriage 
constituted  by  the  contract,  dependent  on  the  State,  and  by  the  sacrament,  of 
which  the  State  should  take  no  account.  He  appeals  to  this  theory,  as  we  shall 
presently  say,  to  vindicate  the  precedence  of  the  civil  marriage.  Cf.  also 
Lemaire,  o.  c,  II  s. ;  Allegre,  o.  c,  p.  117  s. ;  Friedberg,  Das  Rechf,  p.  549 
s.,  p.  567  s. 

3.  The  clause  requiring  the  precedence  of  the  civil  marriage  (see  below)  does 
in  fact  restrict  this  independence,  but  it  was  not  the  intention  of  the  legislators 
to  injure  it. 

3.  Cf.  SCHAEPMAN,  O.  C,  p.  Q  S. 

4.  HoLLWECK,  o.  c,  p.  9  s.,  shows  the  historical  phases  of  civil  marriage  in 
the  different  countries  of  Germany  before  the  establishment  of  the  Empire  ; 
also  its  introduction  under  the  Empire,  by  the  law  of  6  Feb.  1875,  and  its  sanction 
in  the  new  Code  of  1900. 

5.  «  En  Amerique  la  contractation  obligatoirement  civile  du  mariage  a  6t6 
introduite  dans  les  Etats  principalement  catholiques  suivants  :  Mexique, 
1884;  Chili,  1884;  Uruguay,  1885  ;  Republique  Argentine,  1888-1889  ;  Br6sil, 
1890  ».  RoGUiN,  o.  c,  p.  14a. 

6.  We  are  speaking  of  England  only,  apart  from  Ireland  and  Scotland,  which 
each  have  their  own  legislation.  Thus  in  Scotland  two  kinds  of  marriages  are 
admitted,  regular  and  irregular.  Cf.  Lehr,  o.  c,  p.  231  s. ;  Allegre,  o.  c,  p. 
130  s.  ;  this  author  makes  mention  also  of  Gretna  Green  marriages. 

In  England,  for  a  long  time  prevailed  the  regime  of  religious  marriage  in  the 
strict  sense,  in  that  religious  solemnization  before  an  Anglican  minister  (from 


438  CIVIL  MARRIAGE 

States  (<). 

c/  Elsewhere  there  exists  the  Nothcivilehe ;  and  there  some  are  limited  to 
the  religious  marriage,  others  to  the  civil,  while  others  again  can  choose 
between  the  two.  This  state  of  things  exists  with  various  modifications 
in  Norway,  Sweden,  Denmark  (*)  and  Austria  (^). 

2.  In  some  places,  particularly  in  Europe,  the  regime  of  religious  marri- 
age understood  in  the  strict  sense,  still  flourishes  at  the  present  day,  at 
least  in  the  case  of  those  who  belong  to  the  established  religion,  so  that 
religious  solemnization  is  not  only  admitted  and  acknowledged  by  the 
State,  but  the  entire  legislation  and  jurisdiction  are  also  left  to  the  religious 
authority. 

This  is  the  case  in  Russia,  Servia,  Montenegro  and  in  some  of  the  pro- 
vinces of  the  Austrian  Empire,  viz.,  in  Croatia  and  Slavonia,  and  in  Bosnia 


1836-1837,  before  ministers  of  other  religions  also)  was  not  only  sanctioned  by 
the  State,  but  the  entire  legislation  and  jurisdiction  in  the  matter  of  marriage 
were  left  In  the  hands  of  the  Anglican  Church. 

But  from  the  year  1857,  matrimonial  jurisdiction  was  transferred  to  the  civil 
courts,  and  the  legislation  iiscM  de  facto  (ii not  de  jure)  is  in  the  hands  of  Parlia- 
ment, by  which,  contrary  to  the  statutes  of  the  Anglican  Church,  divorce  a  vin- 
culo was  introduced  in  the  said  year  1857;  and,  in  1907,  the  impediment  of 
affinity,  in  the  first  degree  of  the  collateral  line,  was  abrogated,  in  so  far  as  the 
marriage  of  a  widower  with  his  deceased  wife's  sister  was  declared  valid,  while, 
in  other  respects,  the  provisions  and  impediments  of  the  matrimonial  law 
of  the  Anglican  Church  were  preserved  in  the  civil  law.  Cf.  Galichet,  o.  c, 
p.  140  ss. 

Religious  solemnization  is,  however,  retained,  at  the  choice  of  the  parties, 
before  a  minister  of  the  Anglican  religion  or  of  some  other  religion.  Such  minis- 
ter is  recognised  as  having  an  official  civil  status  (that  ot  registrar), so  that  marri- 
age celebrated  before  him,  in  a  legally  recognised  place,  is,  ipso  facto,  valid 
before  the  civil  courts.  Up  to  the  present.  Catholics  have  not  taken  advantage 
of  this  privilege  conferred  by  the  Act  of  1898.  The  practice  with  Catholics  is  to 
celebrate  the  religious  marriage  in  a  c  licensed  building  >,  and  then  to  repeat  the 
form  of  civil  marriage  in  the  presence  of  the  registrar  (in  the  said  «  licensed 
building  »),  and  sign  the  register  together  with  the  officiating  priest  and  the  wit- 
nesses. 

1.  ScHULZE,  Eherecht,  1.  c,  p.  754-760,  describes  the  legislation  of  the  Federa- 
ted States. 

2.  See  RoGUiN,  o.  c,  p.  120  ss.  This  author  deals  rather  with  the  regime  in 
force  in  the  Scandinavian  countries  under  the  head  oi  Facultative  Civilehe. 

3.  Laurin,  Introd.  in  jus  matrimoniale,  p.  125  s.,  cf.  p.  97  s.  ;  Hollweck,  o.  c, 
p.  9  ;  Th.  Pr.  Quartalschr.,  igog,  p.  500 ;  Scheicher,  o.  c,  p.  5  et  335  s.  See  also 
below,  no  333,  in  note. 


CIVIL  MARRIAGE  439 

and  Herzegovina  (•).  This  regime  is  most  fully  in  force  in  Spain,  where  its 
completely  religious  character  is  preserved  in  the  marriage  of  Catholics, 
and  the  entire  canonical  legislation  is  recognised  by  the  State  ;  while  civil 
marriage  is  there  available  for  non-catholics  only  {^).  Cf.  below.  n°  232.  A 
like  regime  existed  in  Portugal,  before  the  recent  revolution  {^). 

On  the  subject  of  these  different  regimes,  see  Roguin,  o.c,  p.  116-152  (*); 
Hergenrother-Hollweck,  o.  c,  n°  1015  ;  Vering,  o.  c,  p.  875  ss.  ;  Sac- 
MiiLLER,  o.  c,  p.  540  ss.  ,'  ScHNiTZER,  o.  c,  p.  52  SS. ;  Leitner,  Lchrb.,  p. 
84  s.  We  may  observe  that  civil  marriage  was  first  introduced  in  its  obliga- 
tory form  (but  not  permanently)  in  England  in  1653.  In  Holland  and  Frisia 
the  optional  form  was  already  in  existence  in  1580 ;  people  could  choose 
between  the  presence  of  the  civil  officer  and  that  of  the  Protestant  minis- 
ter («). 

III.  Belgian  legislation  on  civil  marriage. 

A.  Form  of  celebration. 

230 

The  formalities  required  for  validity  in  the  celebration  of  civil  marriage  Provisions  of 

have  already  been  described  above  in  n^^  83  and  243,  together  with  the      '^^^^^'^* 
changes  recently  introduced  by  the  law  of  7  Jan.  1908.  especially  of 

B.  Precedence  of  civil  marriage  over  religious  marriage.  Qg^g  otfdvil 

The  provision  relatmg  to  the  precedence  of  the  civil  formalities  over  the  in"^articfii'ar 

religious  was  proposed  for  the  first  time  by  the  promoter  of  art.  7  of  the  as  regards  the 

law  of 
precedence, 

I.  Leitner,  Ne  Temere,  p.  91. 

3.  Before  Spaniards  can  be  civilly  married,  they  must  make  a  declaration  that 
they  do  not  profess  the  Catholic  religion.  In  connection  with  this  required  decla- 
ration difficulties  have  recently  arisen,  and  an  attempt  has  been  made  to  have  it 
abrogated.  Cf.  Etudes,  t.  CXI,  p.  46  s. 

3.  Roguin,  o.  c,  p.  391  s. 

4.  The  author,on  p.  151  s., speaks  of  the  curious  legislation  in  Roumania,  which 
requires  both  the  civil  and  religious  marriage  ;  in  virtue  of  the  constitution,  the 
fulfilment  of  the  civil  formalities  must  be  followed  by  the  nuptial  blessing  :  «  La 
benediction  religicuse  est  n^cessaire  pour  le  mariage,  sauflescas  qui  seront 
pr6vus  par  une  loi  speciale  ». 

5.  Friedberg,  Das  Recht,  p.  481  ss.  The  law  passed  on  the  i  April  1580,  on  the 
one  hand,  granted  a  concession  to  Catholics,  who  were  no  longer,  as  previously, 
compelled  to  marry  before  the  Protestant  minister  J  but,  on  the  other  hand,  it 
introduced  civil  marriage  and  made  it  obligatory  for  them,  since  for  religious 
marriage  they  could  only  apply  to  the  Reformed  Church,  which  they  could  not 
conscientiously  do. 


440  CIVIL  MARRIAGE 

Constitution  of  1791.  The  Gallican  idea,  as  we  have  seen,  regarded  marri- 
age as  a  civil  contract  which  was  subsequently  perfected  by  the  sacrament ; 
and  though  the  law  entirely  abstracted  from  the  sacramental  character,  it 
was  nevertheless  logical  from  the  Gallican  point  of  view,  to  forbid  the  nup- 
tial blessing  before  the  civil  contract  (')• 

But  the  law  of  1792  cut  short  the  question  of  precedence.  It  instituted 
purely  civil  marriage,  deprived  of  all  sacred  character,  having  no  need  of 
any  religious  ceremony  to  perfect  it,  and  completely  independent  of,  and 
distinct  from  the  religious  marriage  that  Catholics  could  contract  if  they 
wished.  Neither  the  law  of  1792,  nor  the  worse  one  of  1795,  made  any 
regulation  on  this  point ;  it  simply  did  not  exist  for  them. 

But  the  clause  requiring  the  precedence  of  civil  marriage  was  introduced 
in  the  Concordat,  in  the  organic  article  54  ;  and  later,  in  1810,  the  Penal 
Code,  art.  199  and  200,  enforced  it  under  severe  penalties.  This  step  was 
determined  by  motives  of  practical  expediency,  and  especially  by  the  fear 
that  existed  that  a  large  proportion  of  married  persons  would  content  them- 
selves with  the  religious  marriage,  and  thus  give  rise  to  many  anomalies 
in  determining  the  civil  status  of  citizens  (*).  Moreover,  there  were  at  the 
time  many  priests  and  Bishops  even,  who  were  of  the  same  opinion,  and 
demanded  the  precedence  of  civil  marriage  (s). 

This  law  is  the  one  at  present  in  force  in  Belgium  (*),  in  virtue  of  art. 
16  of  the  Constitution  (»),  and  every  infraction  of  it  is  liable  to  heavy  penal- 


1.  Durand  de  Maillane,  in  the  face  of  the  opposition  raised  against  it,  after- 
wards withdrew  his  original  proposal. 

2.  We  may  add  that  Portalis,  though  in  fact  influenced  by  these  reasons  of 
expediency,  undertook  to  justify  this  provision,  the  illogicalness  of  which  he 
fully  understood,  by  reviving  the  old  Gallican  theory  of  the  contract-sacra- 
ment, which  logically  led  to  the  precedence  of  the  contract  over  the  nuptial  bles- 
sing. Cf.  Friedberg,  Das  Recht,  p.  567  s.  ;  Rasdevant,  o.  c,  p.  200  and  304  ; 
Hebrard,  Les  articles  organiques,  Paris,  1870,  p.  385  s. ;  Delassus,  o.  c,  p.  7  s., 
who  observes  that  this  theory  was  also  invoked  in  the  Expose  des  motifs  of  art. 
199  and  200  of  the  Penal  Code. 

3.  Lemaire,  o.  c,  p.  116,  in  the  note. 

4.  It  is  the  same,  in  general,  in  the  other  countries  in  which  civil  marriage 
exists,  with  the  exception  of  Italy  and  Chili.  For  the  legal  provisions  of  Hun- 
gary, Germany  and  the  Netherlands,  as  well  as  the  penalties  under  which  the 
precedence  of  civil  marriage  is  enforced,  see  Balog,  o.  c,  p.  gs.,  25  s.,  and 
35  s.  respectively.  On  page  32  ss.,  the  author  adds  that  the  Swiss  Code,  which 
comes  into  force  in  1912,  preserves  the  law  of  precedence,  but  suppresses  the 
penalties  which  heretofore  accompanied  it. 

5.  «  Le  mariage  civil  devra  toujours  pr^ceder  la  benediction  nuptiale,  sauf  les 
exceptions  a  etablir  par  la  loi,  s'il  y  a  lieu  >. 


CIVIL  MARRIAGE  44I 

ties  («).  Nevertheless  the  text  of  art.  16  provides  for  the  legislative  introduc- 
tion of  exceptions  ;  this  was  the  object  of  the  law  of  3  Aug.  1909,  relative 
to  marriages  in  extremis,  proposed  by  M.  Woeste  and  duly  passed  (»). 

On  the  subject  of  this  article  and  the  discussions  provoked  by  it,  read  Huyt- 
TENS,  0.  c,  I,  p.  587-631  and  II,  p.  466-473.  On  the  one  side,  its  defenders  could 
allege  little  but  theoretical  principles ;  and  their  main  contention  was  that,  with- 
out this  obligation  of  precedence,  many  would  neglect  the  civil  formalities 
altogether  and  confine  themselves  to  the  religious  marriage,  which,  as  they  said, 
has  been  proved  by  experience.  On  the  other  side, many  Catholics  objected  to  the 
penalties  imposed,  as  an  infringement  of  liberty,  but  nevertheless,  in  a  spirit  of 
conciliation,  acquiesced  in  the  precedence,  relying  upon  the  exceptions  which 
the  law  makes  possible.  Cf.  Coll.  Briig.,  t.  XIII,  p.  517  s.,  where  we  have 
briefly  explained  the  discipline  formerly  in  force  under  the  Dutch  domination 
and  under  the  provisional  government ;  see  also  the  Revue  cath.  des  Institutions 
et  du  droit,  1903,  t.  31,  p.  136  s. ;  Lecler.,  Coll.  Namurc,  t.  IX,  p.  354  s.  ;  Stan- 
DABRT,  Collat.  Gandav.,  IV,  p.  62  ss. 

I.  Code  Penal  Beige,  art.  267  ;  «  Sera  puni  d'une  amende  de  cinquante  francs 
a  cinq  cents  francs  tout  ministre  d'un  culte,  qui,  hors  les  cas  formellement 
exceptes  par  la  loi,  procedera  a  la  benediction  nuptiale  avant  la  calibration  du 
mariage  civil. 

En  cas  de  nouvelle  infraction  de  meme  espece,  il  pourra,  en  outre,  etre  con- 
damne  a  un  emprisonnement  de  huit  jours  a  trois  mois  ». 

The  interpretation  of  this  laWjhaving  regard  to  the  existing  jurisprudence, calls 
for  the  following  observations.  Prima,  according  to  the  declaration  made  in  the 
Senate  by  the  minister  of  Justice,  De  Lantsheerc,3o  July  1909,  on  the  occasion  of 
the  discussion  of  the  law  of  3  Aug  1909,  the  words  «  benediction  nuptiale  »,  both 
in  the  Constitution  and  in  the  Penal  Code,  «  visent  tous  les  cas  ou  la  presence 
d'un  pretre  est  neccssaire  pour  rendre  valable  un  mariage  religieux  »  [Annates 
Partem.  —  Senat,  Session  de  1908-1909,  p.  587).  Secundo,  to  constitute  the 
offence,  the  purely  passive  assistance  of  the  priest  is  sufficient,  such  as  was 
until  recently  given  in  the  case  of  a  mixed  marriage  {Pandectes  Beiges,  under 
Acte  de  mariage,  n°  47,  compared  with  the  decision  of  the  Trib.  d'Anvers  of  9 
March  1S76,  with  that  of  the  Trib.  de  Bruxelles  of  16  Nov.  1876  and  that  of  the 
Cour  dc  Cassation  of  36  Dec.  1876  ;  in  the  Pasicrisie,  1876,  p.  97  and  1877,  p.  21 
and  41,  in  the  case  of  M.  Sacre,  Dean  of  Antwerp).  Tertio,  under  art.  66  and  67 
of  the  Penal  Code,  co-operation  in  the  oSence  is  also  punishable  ;  and  it  was  on 
this  head  that  the  Dean  of  Antwerp  was  condemned  for  having  delegated  his 
curate  (Ibid.)  ;  read  also  the  speech  of  the  minister  before  the  Chamber  of 
Representatives,  27  Nov.  1908  (in  the  Attnales,  p.  143).  Cf.  Lecler,  Coll. 
Namur.,  t.  IX,  p.  256  s. 

As  regards  the  application  of  the  penalties,  the  priest  may  benefit  by  the  con- 
damnation  conditionnelle.  Cf.  Coll.  Drug.,  VII,  p.  133. 

3.  The  occasion  of  the  introduction  of  this  law  was  the  recent  conviction  of 
M.  Van  Langenhove,  vicaire  at  Overboelaere,  who  had  officiated  at  a  marriage 


442  CIVIL  MARRIAGE 

The  following  is  the  text  of  this  new  provision  :  «  Article  unique.  L'art. 
267,  paragr.  i^"",  du  code  Penal  est  modifie  comme  il  suit :  Sera  puni  d'une 
amende  de  cinquante  francs  a  cinq  cents  francs,  tout  ministre  d'un  culte 
qui  proc^dera  a  la  benediction  nuptiale  avant  la  celebration  du  mariage 
civil. 

Cette  disposition  ne  sera  pas  applicable  lorsqu'une  des  personnes  qui 
ont  re9U  la  benediction  nuptiale  etait  en  danger  de  mort,  et  que  tout  retard 
apporte  a  cette  ceremonie  eut  pu  avoir  pour  efifet  de  la  rendre  impossi- 
ble («) ». 

In  the  case  of  France,it  may  well  be  asked  if  the  new  regime  of  separation 
has  not  modified  the  respective  positions  of  civil  and  religious  marriage.  On 
this  subject,  cf.  the  Revue  Atigustinienne,  1906,  t.  IX,  p.  424  s.  ;  Le 
Can.  contemporain,  1906,  p.  641  s.  ;  the  Revue  d'Apologetique,  t.  X  (1910), 
p.  539  s.  ;  Delassus,  o.  c,  p.  12  s.  ;  Planiol,  o.  c,  I,  n°  850. 

IV.  Criticism  of  the  Belgian  civil  legislation. 
The  Belgian      A.  The  legislation  in  force  is  objectionable. 

tion  iiobjec-      !•  •'^  ^he  institution  of  obligatory  civil  marriage. 

tionable,  both  Xhe  law  sanctioning  obligatory  civil  marriage  is  objectionable  on  many 
tion  of  civil  grounds.  It  is  enough  tor  us  to  say  that  it  is  entirely  untrue  to  the  nature  of 
marriage,  Christian  marriage,  lowering  it  to  the  status  of  a  purely  lay  and  secular  for- 
mality, and  that  it  introduces  a  ridiculous  dualism.  This  latter  point  is  very 
well  put  in  light  by  Lemaire,  o.  c,  p.  i8g  :  «  It  is  impossible  to  base  a 
nation's  conception  of  marriage  upon  the  idea  that,  in  order  to  marry  it  is 
necessary  to  marry  twice.  Legislation  and  the  law  have  their  understandings 
with  morality  that  the  good  sense  of  the  people  and  practical  morality  know 
nothing  about.  Why  say  yes  in  the  church,  and  then  yes  in  the  mayor's 
office,  or  why  yes  in  the  mayor's  office  and  then  yes  in  the  church  ?  We 
cannot  get  away  from  this  twice  uttered  yes,  the  one  of  import,  the  other 
of  no  import  at  all  >.  This  dualism  logically  leads  to  endless  conflicts 
between  the  law  and  conscience ;  marriages  null  in  conscience  are  declared 
valid  in  law,  and  vice  versa  (*). 


in  extremis,  on  the  4  Oct.  1907.  See  the  Expose  dcs  motifs,  in  the  Documents  Par- 
lementaires.  (Chambre  des  Repr^s..  1907-1908,  n.  134) ;  Collat  Namurc,  t.  IX, 
p.  357  ;  Collat.  Gandav.,  IV,  p.  61  s. 

1.  Moniteur  Beige,  1909,  n"  234,  p.  4441.  We  have  given  a  brief  commentary  on 
this  provision  in  the  Coll.  Brug.,  t.  XV,  p.  99  s.,  cf.  t.  XIII,  p.  514  s.  See  also 
below,  no  401  ;  Collat.  Gandav.,  IV,  p.  67  ss. 

2.  Cf.  Lemaire,  o.  c,  p.  128-135,  who  makes  the  following  observation  on  page 
130  :  <  Des  lors  qu'il  n'y  a  pas  harmonic  cntre  la  reglementation  du  mariage 
religieux  et  celle  du  mariage  civil,  et  que  cependant  il  y  a  obligation  de  respec- 
ter I'une  et  I'autre,  la  premiere  par  devoir  de  conscience,  la  seconde  par  prescrip- 


CIVIL  MARRIAGE  443 

2.  In  the  clause  requiring  precedence. 

Though  this  clause,  as  we  have  said,  was  not  introduced  in  a  spirit  of    and  in  the 
hostihty  to  the  Church  and  reUgious  marriage,  it  has  nevertheless  greatly  c^«"^''f^9'"*'- 
contributed  to  the  spread  of  the  popular  opinion  that  the  civil  marriage  is      den^:e. 
of  more  importance  than  the  religious,  and  that  the  latter  is  only  an  inci- 
dental ceremony  (').  Moreover,  it  is  altogether  illogical  and  opposed  to 
liberty  ;  and,  in  fine,  the  reasons  of  expediency  that  have  been  alleged  are 
of  no  value,  at  least  at  the  present  time.  And  in  fact : 

a/  This  clause  is  illogical,  even  granting  the  principle  of  civil  marriage 
together  with  the  regime  of  separation  and  the  mutual  independence  of  the 
two  courts.  Even  our  opponents  admit  this  {-). 

b/  It  is  opposed  to  liberty.  It  may  very  well  happen  that  there  are  urgent 
reasons  for  being  married  in  the  sight  of  God,  when  the  parties  concerned 
are  so  situated  that  they  cannot  first  go  through  the  civil  form  of  marriage, 
either  because  of  some  impediment  from  which  the  State  cannot  dispense, 
or  because  of  circumstances  which  do  not  permit  of  the  necessary  delay  (=). 


tion  legale,  11  en  rdsultera,  dans  toutes  les  circonstances  ou  cette  double  satisfac- 
tion ne  sera  pas  possible,  un  tiraillement  douloureux,  un  penible  conflit,  dont 
les  parties  sont  les  victimes  >.  See  also  Hollweck,  o.  c.,  p.  43-77  ;  he  gives  a 
complete  criticism  of  obligatory  civil  marriage. 

1.  Read  the  eloquent  letter  of  Leo  XIII  to  the  Bishop  of  Verona  against  an 
analogous  law  of  which  there  was  question  (8  Feb.  1893),  in  the  Acta  S.  Sedis, 
XXV,  p.  459  s.  ;  see  also  Lemaire,  o.  c,  p.  147  ;  Delassus,  o.  c,  p.  3  and  4, 
where  are  given  the  words  of  Pius  IX  in  his  Allocution  to  the  Belgians,  3  Oct. 
1875,  and  in  his  Brief  of  15  Jan.  1876. 

2.  «  De  deux  choses  I'une  »,  exclaimed  Batbie,  as  far  back  as  1867,  «  ou  le 
mariage  religieux  n'est  rien  aux  yeux  du  legislateur,  et  alors  pourquoi  les  arti- 
cles 199  et  200  du  Code  penal,  qui  erigent  en  delit  un  acte  de  religion  ?  Ou  le 
mariage  religieux  est  un  fait  important,  et  alors  pourquoi  le  code  civil  n'en 
tient-il  aucun  compte  ?  II  faudrait  choisir  entre  les  deux  partis.  Que  le  mariage 
religieux  soit  non  existant  pour  la  loi  civile,  et  existant  pour  la  loi  p^nale,  c'est 
une  contradiction  manifeste  ».  Lemaire,  o.  c.,p.  122  ;  he  also  quotes,  on  p.  124, 
the  words  of  Laurent.  Cf.  also  the  remarkable  words  of  Dr.  Van  Kaay,  quoted 
by  Schaepman,  o.  c,  p.  21  s.  The  Chronique  of  7  March  1908,  and  the  Peuple  of 
29  March  1908,  speak  to  the  same  effect.  We  have  given  their  testimony  in  the 
Coll.  Brug.,  t.  Xm,  p.  519. 

3.  This  is  by  no  means  a  gratuitous  hypothesis  ;  on  the  contrary.such  cases  are 
of  frequent  occurrence,  quite  apart  from  marriages  in  extremis.  The  patent  proof 
of  it  is  to  be  seen  in  the  reports  published  by  the  Society  of  Saint  Francis  Regis. 
Sometimes  it  is  the  parents  who  refuse  their  consent ;  sometimes  it  is  the 
authentic  acts  concerning  the  act  of  duty,  or  the  decease  of  the  former  partner, 
that  are  wanting  ;  sometimes,  again,  it  is  not  possible  to  fulfil  in  time  the 
required  formalities  on  the  part  of  foreigners  who  wish  to  get  married  in  Bel- 


444  CIVIL   MARRIAGE 

There  is  then  a  violation  of  liberty,  and  this  was  recognised  by  many  mem- 
bers of  the  Congress  itself  (1830- 1831)  (*). 

c/  Finally,  the  reasons  of  practical  expediency,  which  were  formerly 
invoked,  no  longer  exist  in  the  present  state  of  affairs.  All,  even  the  unedu- 
cated, know  of  the  advantages  provided  by  the  law,  and  they  would  take 
care  not  to  forfeit  them  by  neglecting  the  civil  formalities  (*).  Moreover, 
confusion  in  civil  status  is  no  longer  possible,  for  we  are  now  far  from  the 
time  when  the  parish  priest,  in  officiating  at  a  marriage,  acted  at  the  same 
time  as  the  civil  officer,  in  the  name  of  the  King  (=). 
252  B.  The  remedies. 

How  the  evil      \,  The  radical  remedy  would  be  to  reform  the  matrimonial  legislation  on 
consequences  .,     ,.  r^i     ,-,,,...   ,  r     ,     ,  ■  ,  , 

of  tJte  law    *"^  "°6s  01  the  Catholic  pnnciples  set  forth  above,  m  such  a  way  that  the 

might  be     State  should  continue  to  regulate  the  marriages  of  its  unbaptized  subjects, 

and  leave   to  the  Church  the  exclusive  regulation  of  marriages  between 


glum  ;  for,  according  to  the  requirements  of  the  Hague  Conference,  such  con- 
tracting parties  must  conform  to  the  laws  of  their  own  country  as  regards  their 
right  and  ability  to  marry.  Cf.  Coll.  Brug.,  t.  XV,  p.  105,  where  we  treat  the 
question  at  length. 

1.  Cf.  the  Expose  des  motifs  de  M.  Woeste,  in  justification  of  his  proposal  ot 
the  law  mentioned  above. 

2.  «  En  wie  er  in  den  aanvang  ook  al  onnoozel  genoeg  wezen  mocht,  om  de 
burgerlijke  huwelijksvoltrekking  te  verzuimen,  de  allertreurigste  gevolgen  van 
zijn  verzuim  zouden  hem  alras  tot  die  burgerlijke  huwelijksvoltrekking  nopen, 
en  de  andere  zouden  zich  uit  louter  eigenbelang  wel  wachten  zijn  verkeerd  voor- 
beeld  te  volgen  ».  Schaepman,  o.  c,  p.  13  s. 

3.  Formerly,  and  precisely  on  account  of  the  recent  introduction  of  the  change 
in  the  law,  it  was  possible  to  allege  the  likelihood  of  this  confusion  with  some 
show  of  truth  ;  and  Portalis  does  not  fail  to  say  :  «  L^s  ministres  qui  procedent 
aux  ceremonies  religieuses  d'un  mariage,  sans  qu'il  leur  ait  ete  justifi^  de  I'acte 
de  mariage  re9u  par  les  officiers  de  I'^tat  civil,  compromettent  ^videmment 
r^tat  civil  des  gens  simples,  d'autant  plus  disposes  a  confondre  la  benediction 
nuptialc  avec  I'acte  constitutifdu  mariage,  que  le  droit  d'imprimer  au  mariage 
le  sceau  de  la  loi  etait  naguere  dans  les  mains  de  ces  ministres  ».  But  now,  as 
La  Chronique  says,  1.  c,  «  le  temps  a  pass^,  on  sait  que  le  pretre  ne  peut  con- 
fdrer  le  caract^re  Idgal  k  I'union  de  I'homme  avec  la  femme  »  ;  and  Le  Peuple 
says,  1.  c,  «  chacun  sait  pertinemment  a  quoi  s'en  tenir  sur  la  valeur  respective 
des  diverses  formes  du  mariage  ». 

Besides,  if  the  reason  was  good,  if  there  was  really  need  to  see  that  certain 
married  people  did  not  live  as  such  without  civil  marriage,  the  law  ought  also 
to  prevent  all  concubinage,  as  De  Gerlachc  said  very  pointedly  before  the 
National  Congress  (Huyttens,  o.  c,  p.  590).  And  finally,  if  there  was  reason 
to  fear  some  abuses,  the  timely  intervention  of  the  Bishops  would  suffice  to 
prevent  them. 


CIVIL  MARRIAGE  445 

Christians.  The  law  would  rightly  require  that  the  civil  authorities  should 
be  duly  informed  of  the  religious  marriages  that  took  place,  so  that  it 
might  be  enabled  to  recognise  the  married  parties  as  such,  and  give  to  their 
union  its  civil  effects. 

Thus,  in  Spam,the  Church  regulates  the  marriage  of  Catholics, both  as  to 
impediments  and  the  formalities  of  its  celebration  (*).  The  civil  law  prescrib- 
es the  observance  of  the  form  of  the  Council  of  Trent  or  that  of  Pius  X, 
and  for  the  civil  authentication,  it  ordains,  in  art.  359  :  «  The  municipal 
judge  or  other  functionary  of  the  State  must  be  present  at  the  canonical 
celebration  of  a  marriage,  in  order  to  insure  its  immediate  registration  in 
the  civil  register  >.  As  to  ecclesiastical  judgments  in  the  matter  of  marri- 
age: «The  judgment  is  entered  in  the  civil  register  and  presented  to  the  ordi- 
nary tribunal  for  the  purpose  of  obtaining  its  execution  as  far  as  its  civil 
effects  are  concerned  >  (*).  On  the  other  hand,  the  law  determines  the  civil 
formalities  to  be  observed  by  those  who  do  not  profess  the  Catholic  religion. 
See  Lemaire,  o.  c,  p.  188-230 ;  Lehr,  o.  c,  p.  160  s. ;  Coll.  Brug.,  t.  XII, 
p.  274. 

Having  regard  to  circumstances,  the  Church  would  be  able  to  tolerate,  as 
it  does  in  Spain,  that  the  civil  form  prescribed  by  law  should  be  applicable 
to  those  of  the  faithful  who  are  unwilling  to  conform  to  the  matrimonial 
legislation  of  the  Church,  so  that  their  marriages  might  not  be  deprived  of 
formality  and  left  to  the  caprice  of  individuals  (=). 

Witliout  being  so  radical  and  so  conformable  to  the  exposed  principles 
on  the  regulation  of  marriage,  the  remedy  Nvould  already  prove  efficacious 
if  our  laws  adopted  a  regime  analogous  to  that  which,  as  we  have  seen,  is 
in  force  in  England  and  in  several  States  of  North  America  :  viz.  that  the 
State,  though  reserving  to  itself  the  regulation  of  marriage,  would  recognise 
the  legality,  in  the  civil  forum,  of  the  religious  formalities  to  be  fulfilled  in 
the  celebration  of  marriage  between  Catholics.  The  crying  anomaly  of 
the  two  consents,  which  we  have  pointed  out  in  the  preceding  number, 
would  directly  dissappear. 

2.  But  if  the  spirit  of  the  times  does  not  permit  us  to  hope  for  such  a 
satisfactory  solution,  some  remedy  at  least  ought  to  be  afforded  for  the  evil 
consequences  that  flow  from  the  obligatory'  precedence  of  the  civil  marriage: 

1.  «The  conditions,  form  and  solemnities  for  the  celebration  of  canonical  marri- 
age are  regulated  by  the  provisions  of  the  Council  of  Trent,  admitted  as  laws 
of  the  realm...  The  cognizance  of  cases  of  nullity  or  of  separation,  where  canoni- 
cal marriage  is  concerned,  belongs  to  the  ecclesiastical  courts  ».  Art.  358  and 
364,  in  the  first  part.  The  Spanish  Government,  consistent  with  itself,  has  also 
officially  promulgated,  as  a  law  of  the  realm  the  Decree,  Ng  Temerc.  Domaica, 
o.  c.  p.  61,  gives  the  terms  of  this  promulgation. 

2.  Art.  363,  in  the  second  part. 

3.  On  the  toleration  of  this  NotJiciviUhe,  cf.  Hollwbck,  o.  c,  p.  39-42. 


446  CIVIL   MARRIAGE 

a/  The  abrogation,  pure  and  simple,  of  art.  16  of  the  Belgian  Constitution, 
or  at  least  of  the  penalties  imposed  thereby, would  be  the  most  logical  course. 
Many  of  the  opponents  of  the  Church  are  themselves  of  this  opinion  ('). 

b/  If  this  abrogation  cannot  be  brought  about,  an  attempt  should  be  made 
to  avoid  the  consequences  of  the  law.  There  are  various  ways  of  doing  this  : 

Either  the  practice  of  the  courts  might  be  confined  to  the  natural  inter- 
pretation of  the  law  ;  and  then,  as  the  prohibition  and  the  penalty  affect 
only  the  nuptial  blessing  and  the  religious  ceremonies  (*),  the  priest  who 
assisted  at  a  marriage  simply  as  the  authorized  witness,  without  any  sacred 
rite,  would  not  be  liable  to  the  penalties. 

Or  the  interpretation  of  the  Decree  A^^  Tentere,  art.  VIII,  proposed  above 
(n°  69),  might  be  put  in  practice  :  the  marriage  would  be  validly  contracted 
without  the  priest,  before  two  witnesses  only,  in  the  case  in  which  the  parish 
priest,  in  consequence  of  the  law  of  precedence,  could  not  give  his  assis- 
tance without  incurring  the  penalty.  We  may  remark  that  the  Belgian 
law  and  its  penalties  affect  only  the  sacred  minister,  and  not  the  witnesses 
or  the  contracting  parties.  The  law  certainly  recognises  co-operation  in  the 
offence,  as  we  have  said  in  n°  230  (and  on  this  ground  it  might,  perhaps, 
hold  the  witnesses  liable  equally  with  the  priest  who  assists  at  a  marriage), 
but  then  every  co-operation  presupposes  an  offence,  and  there  is  no  offence 
where  there  is  no  intervention  on  the  part  of  the  priest.  Cf.  the  Coll.  Briig., 
t.  XV,  p.  106,  together  with  the  note. 

c/  Finally,  there  remains  a  less  radical  remedy,  which  has  hitherto  been 
progressively  employed  ;  viz.,  on  the  one  hand,  the  law  of  precedence 
itself  might  be  mitigated  0),  and  on  the  other  hand,  those  civil  formalities 


1.  To  this  effect  speak  Le  Peuple,\.  c.  and  La  Chronique,  I.e.;  the  latter  conclud- 
es in  these  terms  :  «  Nous  sommes  d'avis  d'aller  plus  loin  (que  M.  Woeste)  et  de 
supprimer  tout  simplement  I'art.  367  du  Code  Penal.  Nous  sommes  ainsi  conse- 
quents avec  nous-memes  ;  nous  avons  toujours  dit  que  ce  qui  se  passe  a  I'^glise 
ne  nous  regarde  pas  ». 

It  is  suq^rising  to  find  Boudinhon,  in  the  Canon.  C ontem p., igo6, p.  641  s.,  oppos- 
ing the  abrogation  of  this  clause  in  France,  as  injurious  in  practice  ;  and  the 
Revue  prat,  d'apolog.,  apparently  agreeing  with  him. 

2.  The  very  wording  of  the  law,  which  ought  to  be  strictly  interpreted,  sug- 
gests this,  as  also  does  the  object  that  the  legislators  had  in  view,  when  this 
provision  was  first  introduced.  Cf.  Schaepman,  Ned.  Kath.  Stemmen,  1905,  p.  368 
s.,  and  in  his  brochure  already  quoted,  p.  23.  We  may  also  add  the  interpreta- 
tion, in  agreement  with  this,  given  by  the  Supreme  Tribunal  of  Holland,  on  the 
23ih  of  July  1850,  {Ned.  Kath.  Stemmen,  p.  366).  See  also  Balog,  o.  c,  p.  38  s.  ; 
Van  de  Burgt-Schaepman,  o.  c,  no  248. 

3.  This  is  what  was  done  by  the  Belgian  law  of  3  Aug.  1909,  enacting  that 
marriages  in  extremis  should  be  withdrawn  from  the  law  of  precedence.  This 


CIVIL  MARRIAGE  447 

that  more  especially  give  rise  to  conflict  between  the  civil  and  ecclesiasti- 
cal law  might  be  modified  ('). 

V.  Practical  Conclusion. 

i33. 

So  long  as  obligatory  civil  marriage,  together  with  the  unfortunate  obli-  Practical  con- 

gation  of  precedency,  is  maintained,  the  following  rule  should  be  followed      '^  «s«<'«- 
in  this  matter  : 

1.  Civil  marriage  between  unbaptized  persons,  should  be  regarded  as 
valid,  provided  there  is  no  transgression  of  the  divine  and  natural  law. 

2.  Civil  marriage  between  Christians,  or  between  a  baptized  and  an 
unbaptized  person,  looking  at  it  as  such  and  in  its  nature,  must  be  regarded 
as  a  pseudo-marriage,  as  a  simple  formality  devoid  of  validity.  It  is 
not,  in  itself,  anything  more  than  a  merely  civil  ceremony,  carrying  with 
it  only  civil  effects,  supposing  that  there  is  already  a  canonically  valid 
bond  (*).  The  State  has  no  competence  or  power  over  Christian  marriage, 
as  is  sufficiently  clear  from  the  principles  that  we  have  established  above(^). 

We  say :  civil  marriage  looked  at  as  such  and  in  its  nature,  that  is  to  say, 
abstracting  from  the  intention  of  the  contracting  parties.  For,  in  fact,  this 
intention  may  sometimes  be,  not  to  go  through  a  simple  ceremony  with  a 
view  to  its  civil  effects,  but  to  contract  a  real  marriage.  In  this  case,  if  the 


same  exception,  suggested  as  it  was  by  art  16  of  the  Belgian  Constitution,  is  in 
force  in  Germany  also  {Rev.  eccles.  de  Mctz,  1900,  p.  338) ;  and  in  1900,  it  was  pro- 
posed in  Holland,  together  with  another  dealing  with  the  case  of  a  couple  who, 
not  being  in  danger  of  death,  formally  declare  that  they  are  living  together  in 
concubinage.  Cf.  Schaepman,  o.  c,  p.  34  ;  compare  with  the  Tijd,  1900,  9, 10  and 
II  Oct.  ;  the  BUn  Public,  13  Oct.  1900.  In  Hungary  this  latter  case  is  admitted 
according  to  the  text  given  in  Balog,  o.  c,  p.  10. 

1.  This  is  the  object  of  the  Belgian  laws  of  26  Dec.  1891,  on  the  subject  of  the 
antenuptial  proclamations,  (see  above,  no  46) ;  of  16  Aug.  1887  and  of  30  Apr. 
1896,  on  the  subject  of  parental  consent ;  and  that  of  7  Jan.  1908,  concerning  cer- 
tain formalities  in  the  celebration  (above,  no  83) ;  as  well  as  of  other  laws  of 
minor  importance,  all  of  which  are  given  and  explained  in  the  appendix  to  the 
Compti-Rendu  of  the  Society  of  Saint  Francis  Regis,  1883-1893  and  1893-1900. 

2.  This  is  why  the  Sovereign  Pontiffs  and  the  Roman  documents  declare 
civil  marriage  null,  and  assimilate  it  to  concubinage,  as  is  shown  by  Heiner, 
Giiltigkeit  oder  Ungiiltigkeit  der  Civilehen,  p.  475  s.  and  477-480. 

3.  Heiner,  1.  c,  p.  475  and  477  (coll.  A.  A.  S.,  IV,  p.  380  ss.,  in  the  Causa 
Argentinen.  33  Febr.  1913),  denies  to  the  civil  union  the  character  of  a  true 
marriage,  because,  as  he  says,  it  is  legally  dissoluble,  and  consequently  deprived 
of  an  essential  quality.  In  our  opinion,  the  true  reason  lies  deeper,  and  rests 
upon  the  very  nature  of  Christian  marriage,  which  is  within  the  exclusive  com- 
petence of  the  Church ;  this  reason  holds  good  even  where  civil  divorce  is  not 
legally  in  force,  as,  for  example,  in  Italy. 


448  CIVIL   MARRIAGE 

contracting  parties  are  not  subject  to  the  decree  Ne  Temere,  their  marriage 
is  valid,  not  on  account  of  the  observance  of  the  civil  formahties  and  in 
virtue  of  the  civil  law,  but  because,  in  observing  these,  they  emit  a  natu- 
rally valid  matrimonial  consent  (Gasparri,  o.  c,  II,  no  1228  (') ;  if  they  are 
bound  by  the  Decree,  they  contract  a  marriage  that  is  invalid  on  the  ground 
of  clandestinity  ;  their  marriage  v^'ill  also  be  invalid  in  itself,  unless  it  is 
certain  that  they  had  the  intention  of  emitting  true  conjugal  consent ;  but, 
supposing  this,  there  is  no  reason  why  their  marriage  might  not  sometimes 
be  subsequently  revalidated  t«  radice,  though  the  canon  law  does  not  re- 
cognise in  it  the  appearance  of  marriage  (-)  (see  below,  n°  408,  and  above, 
n°  92).  Observe  that  such  civil  marriage  is  included  in  the  term  contracted 
marriage,  of  which  mention  must  be  made  when  asking  for  a  dispensation 
(cf.  below,  no  381,  6). 

3.  Although  the  State  claims  for  these  civil  formalities  the  validity  of  a 
real  marriage,  the  Church  tolerates  their  observance  by  the  faithful,  even 
before  the  celebration  of  the  religious  marriage.  We  may  go  further  and 
say  that,  as  a  general  rule,  in  view  of  the  exigencies  of  the  law,  those  about  to 


1.  Under  these  circumstances  there  is  reason  to  presume  a  real  matrimonial 
consent,  and  it  is  in  fact  admitted  that  the  presumption  is  then  in  favour  of  the 
validity  of  the  marriage. This  is  easily  understood  in  the  case  cf  two  non-catholics 
who  contract  a  civil  marriage  ;  generally  speaking,  they  will  look  upon  the  civil 
union  as  a  real  marriage.  In  the  case  of  Protestants  it  is  still  more  natural,  con- 
sidering their  conception  of  the  matrimonial  contract.  In  mixed  marriages  in 
Germany  and  in  Hungary, apparently  the  same  presumption  is  admissible, seeing 
that  the  Catholic  party  is  conscious  of  his  exemption  from  the  general  laws  of 
the  Church,  and  therefore  concludes  that  it  is  possible  to  contract  a  real  marriage 
under  the  civil  ceremonies.  Observe,  however,  that  it  is  only  a  question  of  a 
presumption,  and  it  is  necessary  to  see  that  it  is  realised  in  each  case  as  it 
occurs.  Cf.  Heiner,  1.  c,  p.  483-491,  and  A.  A.  S.,  IV,  p.  388  ;  Boudinhon, 
Canon,  contemp.,  1912,  p.  4463.,  Bockenhoff,  Strassb.  Diuzcsanblatt,  1911,  p,i8  s. ; 
cf.  the  C««s«  Co/of».,  of  27  Aug.  1910,  in  the  A.  A.  S.,  II,  p.  917  ss..  and  espe- 
cially p.  923  and  938.  See  also  above,  n"  93,  where  we  have  observed  that 
unions  of  this  kind  have  the  appearance  of  marriage. 

2.  To  obtain  the  sanatio  in  radice,  it  would  be  necessary  first  of  all  to  make 
sure  of  the  intention  the  parties  had  in  contracting  their  civil  union.  The  true 
matrimonial  intention  is  natural  in  this  case  with  those  who  are  devoid  of  all 
Christian  sense,  and  are  supporters  of  the  supremacy  of  the  State,  so  that  they 
take  no  thought  of  the  law  of  clandestinity  by  which  they  are  bound.  On  the 
other  hand,  there  will  be  great  difficulty  in  admitting  it  in  the  case  of  instructed 
Catholics,  who  know  quite  well  that  civil  marriage  is  a  mere  formality  in  itself. 
Had  such  persons  wished  to  give  real  matrimonial  consent,  they  would  naturally 
have  done  so  before  the  minister  of  the  Church,  not  before  the  civil  officer, 
Cf.^.^.  5.,  IV,  p.  386  s. 


CIVIL   MARRIAGE  449 

marry  should  be  compelled  to  comply  with  the  civil  requirements,  so  that 
their  marriage  may  not  be  deprived  of  its  civil  eflects  or  occasion  any  dis- 
pute. As  a  general  rule,  parish  priests  cannot  even  admit  the  contracting 
parties  to  religious  marriage  without  evidence  that  they  have  complied  with 
the  legal  formalities  ('). 

The  Church  only  requires  that  the  faithful  should  know  that  they  contract 
a  real  marriage,only  at  the  time  when  they  give  their  mutual  consent  before 
the  Church  ;  and  that  they  go  through  a  mere  formality  in  the  presence  of 
the  civil  officer  (*). 

4.  The  Church  permits  its  priests,  in  various  countries,  to  discharge  the 
duty  of  civil  officers,  and  preside  at  the  celebration  of  civil  marriages,  of 
those  at  least  that  are  not  contrary  to  the  divine  or  ecclesiastical  law  {^). 

1.  Cf.  the  Instr.  S.  Poen.,  of  15  Jan.  1866  {Collectanea,  no  1406  ad  5m  and  6"^). 
As  a  proof  in  confirmation  of  the  tolerant  spirit  of  the  Church  in  this  matter,  at 
the  commencement  of  the  present  year,  191 1,  a  rescript  of  dispensation  affecting 
the  diocese  of  Bruges  was  granted  by  the  Holy  See, in  a  case  of  lawful  affinity  in 
the  first  degree  in  the  collateral  line,  but  with  a  prohibition  forbidding  the  use 
of  the  dispensation  befofe  the  royal  dispensation  from  the  civil  impediment  had 
been  obtained  with  a  view  to  the  civil  marriage. 

On  the  other  hand,  in  the  same  Instructio,  ad  j^i,  the  S.  Poenitentiaria  declar- 
es that,  when  there  is  an  obligation  of  giving  precedence  to  the  civil  ceremony, 
«  the  marriage  before  the  Church  must  be  contracted  as  soon  after  as  possible  ». 
The  Liber  Manualis  Brugensis,  p.  167,  strongly  maintains  the  same  opinion,  and 
directs  parish  priests  to  see  that  the  religious  marriage  is  celebrated  on  the  same 
day  as  the  civil  formalities  take  place. 

2.  As  RossET  remarks,  o.  c,  no  2371,  following  the  Secretary  of  the  S.  C.  C. 
in  the  discussion  of  a  case  proposed  in  1879  :  «  The  parties  who  contract  before 
the  civil  authority,  though  they  utter  the  same  words  or  perform  the  same 
actions  as  before  the  parish  priest,  do  not  thereby  exchange  true  internal  matri- 
monial consent  before  the  civil  officer,  nor  are  they  guilty  of  a  falsehood. For,the 
words  and  signs  that  they  are  compelled  to  make  use  of  at  the  of  mairie,  simply 
signify  their  deference  to  the  civil  law  and  their  obedience  to  its  prescriptions, 
for  the  purpose  of  assuring  to  their  real  marriage,  already  contracted  or  about 
to  be  contracted,  the  desired  civil  effects.  The  signification  of  their  act  is  thus 
restricted  by  the  teaching  and  law  of  the  Church,  in  accordance  with  which  the 
contracting  parties  intend  to  be  married  ;  or  again  by  the  common  opinion  and 
usage  of  the  faithful ;  or  finally,  by  the  conditions  requisite  for  the  lawfulness  of 
the  matrimonial  contract  in  accordance  with  the  very  nature  of  the  same.  Hence 
the  words  and  acts  in  question  are  not  fitted  to  express  true  and  internal  con- 
sent to  the  marriage  at  the  mairie,  since  they  necessarily  tend  to  have  a  diffe- 
rent signification,  and  are  confined  to  that,  in  all  those  numerous  cases  in  which 
the  interested  parties  have  no  intention  of  marrying  at  that  moment  », 

3.  See  the  decrees  of  the  C.  S.  O.  of  ao  Dec.  1837,  of  11  Dec.  1850,  of  13  Jan. 

29 


450  CIVIL  MARRIAGE 

5.  Cases  may  occur  in  which,  on  the  one  hand,  there  is  urgent  need  of 
religious  marriage,  either  to  put  right  matters  of  conscience  for  one  of  the 
parties,  or  to  legitimate  the  children,  and  in  which,  on  the  other  hand, 
civil  marriage  is  impossible  on  account  of  want  of  time  or  for  some  other 
reason.  One  must  then  make  use  of  the  method  proposed  in  n°^  69  and  232, 
i.  e.,  make  arrangements  for  the  marriage  to  be  duly  contracted  in  the  pre- 
sence of  two  witnesses.  If  this  cannot  be  done,  the  parish  priest  must  take 
courage,  and  fear  not  to  discharge  his  office,  notwithstanding  the  provi- 
sions of  the  Code  Penal ;  but  he  must  nevertheless  act  with  prudence  so  as 
to  avoid,  as  far  as  possible,  the  risk  of  prosecution  and  punishment. 

Note.  The  Society  of  St.  Francis  Regis  (*)  is  an  invaluable  assistance  in 
solving  the  difficulties  to  which  the  question  of  civil  marriage  sometimes 
gives  rise,  as  well  as  in  obtaining  the  official  acts  required  by  law,  and  the 
faculties  necessary  on  certain  occasions.  The  number  of  marriages  facilitat- 
ed or  r^ularised  by  it,  especially  among  the  poorer  classes  and  the  foreign 
colony  resident  in  our  country,  increases  day  by  day. 


1881  (Collectanta,  nos  1523,  1525  and  1533)  and  of  36  Jan.  1895  (in  the  Can.  Cont. 

1895,  p.  501)  ;  they  concern  the  assistance  of  the  priest,  as  civil  officer,  at  the 
marriage  oi  non-catholics,  and  are  sometimes  more,  sometimes  less  severe.  The 
conclusion  drawn  from  them  is,  that  such  assistance  cannot  be  considered  as 
universally  tolerated.As  to  the  case  of  a  person  who.being  validly  married  before 
the  Church,  but  civilly  divorced,  wishes  to  contract  a  civil  marriage  with  a 
third  person,  it  seems  that  the  assistance  of  a  priest,  as  civil  officer, is  always  for- 
bidden. 

We  have  stated  above,  in  no  314,  that  such  assistance  may  be  tolerated  on  the 
part  of  the  lay  civil  officer  ;  but  the  reason  of  public  good  which  we  could  there 
allege,  evidently  does  not  exist  here. 

I.  This  society  has  its  head  office  at  Brussels,  rue  des  Minimes,  39.  The 
diocese  of  Bruges  has  four  affiliations  in  the  places  given  at  the  end  of  the  Calen- 
darium.  Every  year  there  is  issued  the  «  Compte-rendu  de  la  Society  de  S. 
Franfois  R6gis  ».  The  latest  numbers  of  this  Report  are  particularly  interesting, 
as  they  give  the  consoling  results  that  have  crowned  the  efforts  of  the  members, 
together  with  the  text  and  the  happy  effects  of  the  new  matrimonial  laws. 


ERRATA 

READ: 

Page 

Line 

34 

37 

unlauwful 

unlawful 

42 

14 

Nevetheless 

Nevertheless 

50  (margin) 

public 

high 

50 

19 

holidays 

Holidays 

50 

32 

Days 

Day 

51 

31 

holidays 

Holidays 

53  (margin) 

pratical 

practical 

61 

10 

Appendix 

Scholion 

63 

32 

nto 

into 

64 

3 

has 

have 

64 

5 

does 

do 

64 

21 

or...  either 

either...  or 

79 

38 

by 

be 

80 

23 

thererore 

therefore 

86 

39 

enpediency 

expediency 

87 

16 

wittness 

witness 

88 

33 

finally 

finally 

91 

I 

through 

though 

107 

41 

Cuncil 

Council 

131 

I 

Section 

Paragraph 

136 

5 

Gemany 

Germany 

136 

n 

wich 

which 

144 

39 

orders 

Orders 

149 

38 

no 

nor 

151  (margin) 

adulterys 

adultery 

153 

19 

acondition 

a  condition 

155 

36 

Husserak 

Hussarek 

159 

28 

mus 

must 

165 

27 

note  3 

note  I 

176 

3 

Christns 

Christians 

184 

28 

in 

is 

195 

6 

to-dayother 

to-day  other 

195 

29 

potection 

protection 

ig6 

28 

occured 

occurred 

203 

23 

wich 

which 

304 

2 

crows 

crowns 

304 

8 

wich 

which 

834 

7 

questions 

question 

262 

20 

or 

of 

275 

16 

point 

points 

279 

4 

appearence 

appearance 

286  (tr 

largin) 

he 

the 

393  (margin) 

the  law  monogamy 

the  law  of  monogamy 

303 

38 

socialistic 

socialist 

314 

15 

climaed 

claimed 

373 

42 

Envel.  Brittanica 

Encycl.  Britannica 

404 

32 

christanorum 

christianorum 

423 

31 

regard  the 

regard  to  the 

405 

36 

occassion 

occasion 

ADDENDA. 

P.  119, 1.  21:  The  same  application  may  occur  in  England,  namely  in  the  case 
where  the  marriage  cannot  be  celebrated  ina  «  licensed  building  >. 

P.  121-122  :  note  2  :  We  may  add  to  the  list  of  Authors  favouring  the  opinion 
therein  supported  :  Lehmkuhl,  o.  c,  nth  ed.,  II,  p.  893  ;  Salsmans,  in 
Genicot-Salsmans,  o.  c,  II,  n»  500  ;  Wouters,  o.  c,  in  the  4th  edition 
recently  published,  p.  69  s.;  D^  Knoch,  in  Rev.  eccl.  de  Liege,  VIII,  p.  145. 
On  the  other  hand,  Boudinhon,  quoted  among  those  who  share  the 
other  opinion,  attempted  a  fresh  discussion  in  the  Rev.  du  cl.  ft-, 
t.  LXX(i9i3),p.  594  s. 

P.  129  (margin,  no  75)  add  after  t  himself  that  >  :  the  contracting  parties  are 
free  from  any  impediment,  and  especially  from  any  matrimonial  tie. 

P.  130  (on  the  top  of  the  margin)  add  :  in  the  case  of  vagi,  the  permission 
of  the  Ordinary  is  required. 

P.  383  add  marginal  number  aia,  before  4. 


CH.  BEYAERT,   Publisher,  BRUGES. 

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Jus  Ganonicum  et  Jus 
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